Public Bill Committee

[Mr. Edward O'Hara in the Chair]

Edward O'Hara: Welcome back; I think we are all keen to get going.

Clause 74 ordered to stand part of the Bill.

Schedule 15

Offences relating to nuclear material and nuclear facilities

Maria Eagle: I beg to move amendment No. 224, in schedule 15, page 185, line 16, at end insert—
‘(ba) inciting the commission of a nuclear offence;’.

Edward O'Hara: With this it will be convenient to discuss Government amendments Nos. 225, 226 and 245.

Maria Eagle: Welcome back, Mr. O’Hara, to the rollercoaster ride to the end of the Bill. We are getting there.
I remind hon. Members that the schedule relates to clause 74, which deals with offences relating to the physical protection of nuclear material and nuclear facilities. The amendments will ensure that the convention on the physical protection of nuclear material, including the 2005 amendments thereto, is fully implemented into UK law. They will allow prosecutions for incitement to commit offences against nuclear facilities, as is required by the amended convention. However, in such cases, it must be proved that the individual intended or believed that the offence would be committed. If the offence is not committed as incited, the inciter can still be prosecuted. They are basically transitional arrangements until the Serious Crime Act 2007 comes into force.
Amendment No. 245 makes consequential amendments to the definition of convention offences in schedule 1 to the Terrorism Act 2006. The amendment ensures that the schedule accurately reflects the new list of offences that will be set out in the amended Nuclear Material (Offences) Act 1983 and Customs and Excise Management Act 1979.
Are we dealing with the schedule stand part debate now, Mr. O’Hara?

Edward O'Hara: If there are no objections from the Committee.

Maria Eagle: That is helpful, thank you.
The schedule creates new criminal offences and extends existing ones under the Nuclear Material (Offences) Act 1983, which is necessary for the UK to ratify the 2005 amendments to the convention on the physical protection of nuclear material. We are bringing UK law into line with certain changes made to the convention.
It might help if I give some background information on the changes. The convention was concluded under the auspices of the International Atomic Energy Agency in 1980. It came into force in 1987 and currently has just under 130 parties, of which the UK is one, having signed it in 1980 and ratified it in 1991. The amended convention requires each state party to establish, implement and maintain an appropriate physical protection regime for civil nuclear material and facilities under its jurisdiction, with the aim of protecting against theft, recovering missing or stolen material, protecting material and facilities against sabotage, and mitigating or minimising the radiological consequences of sabotage. It also provides for co-operation between states in the event of nuclear sabotage. It also incorporates a longer list of nuclear offences than the original.
The diplomatic conference of 2005 marked the end of a process initiated by calls for amendment of the convention from the IAEA director general in 1999, and given impetus by enhanced concern for nuclear security following the terrorist attacks in the United States in September 2001.
The new and extended offences cover the following broad areas of activity: misusing nuclear material here or abroad intending damage to be caused to the environment, or being reckless about whether it will be caused; doing something outside the UK that involves moving nuclear material into or out of a state without lawful authority; attacking a nuclear facility here or abroad intending that damage will be caused to the environment by exposure to radiation, or being reckless about whether such damage will be caused; attacking a nuclear facility abroad and intentionally or recklessly causing death, injury or damage to property as a result of exposure to radiation; attacking a nuclear facility here or abroad, intending that death, injury or property damage will be caused by exposure to radiation, or being reckless about whether that is the outcome, even if no such injury or damage occurs.

Philip Hollobone: Those are some very serious offences. I have two questions. Why, at the end of 2007, are we getting round for the first time to implementing what the convention asked the Government to do about these very serious offences? Secondly, how many of the 130 signatories have already passed the measures into their law?

Maria Eagle: State parties that have been involved in the negotiation of the amendments will have their own ways of extending the offences to be able to deal with the issue. My understanding is that about 10 to 15 have managed to ratify, so we are not that far behind. This is the first opportunity that we have had to deal with the matter, which is why, although it is a somewhat strange clause to include in this Bill, I hope that the Committee will accept it. What is happening is about extending co-operation across borders so that activities of the kind in question can be clamped down on properly by the authorities, without running into problems of jurisdiction, or of incompatible laws across state boundaries, given that the relevant matters cross boundaries very easily. We are fairly well up on the list of those who have got around to implementing the changes. It is simply a matter of appropriate legislative vehicles, which, as I hope the hon. Gentleman understands, can often be a problem.
As the hon. Gentleman may know, the existing convention has largely been about transport of nuclear material. It is partly the developments since 2001, and the increased security that states have decided, for obvious reasons, is required around nuclear material, that have led to the diplomatic conference and the amended convention, which we want now to implement. The director general of the International Atomic Energy Agency, Mohamed el-Baradei, said of the amended convention:
“This new and stronger treaty is an important step towards greater nuclear security by combating, preventing and ultimately punishing those who would engage in nuclear theft, sabotage or even terrorism.”
It is on that basis that I commend the schedule and the amendments to the Committee.

David Heath: I welcome you to the Committee this afternoon, Mr. O’Hara. Do not the provisions show the extraordinary nature of the Bill—that part 6 can go from extreme pornography to prostitution and street offences, and then to protection of nuclear material in a universal jurisdiction? Later, of course, we shall go on to consider the penalties for unlawfully obtaining personal data. All that is included in a single part of the Bill—a Bill without a theme, as has been said.
I have some questions on the schedule. I thought that I would be extraordinarily clever, but it turns out that I am not. I was going to query the word “nuclide” in proposed new subsection (8) of section 6 of the Nuclear Material (Offences) Act 1983, because I had always used the word “nucleide” when I learned chemistry many years ago, and I thought it was a misprint, but it turns out that they have changed the word. I hope that I shall get the credit at least for having done my research to ensure that I did not query the use of a word whose usage had changed. I should probably blame the Americans for eliding the perfectly serviceable word “nucleide” into “nuclide”.
The provision is extraordinary in the context of British law, which is not to say that I shall argue against it. The measure provides universal jurisdiction, which is familiar in American law, but which is rarely used in this country. It does not matter where offences occur—it could be anywhere in the world—they will be indictable in a British court, and it will not matter who in the world is alleged to have committed offences because anyone can be tried for them in a British court. It is a substantial undertaking. A matter that has no connection to the United Kingdom or any of its subjects could be put before a British court. We should at least be aware of the breadth of the applicability of the schedule as we debate it.
I should also address one specific measure in the schedule. Paragraph 6 on page 186 deals with nuclear facilities, which are explicitly defined as
“a facility used for peaceful purposes”.
In other words, a facility is excluded if it is not used for peaceful purposes, which is to say
“if it contains any nuclear material which is used or retained for military purposes.”
That proposal seems to be an oddity. If a nuclear facility can in any way be described as having a military application, either in itself or any material contained in the facility, it falls outside the scope of the offence and of the legislation.
It raises some interesting questions of applicability. For example, what about the nuclear facilities that we believe are being built in Iran. The President of Iran tells us that the facilities are being built exclusively for peaceful purposes, which would make removal of material from those facilities an offence under the schedule. On the other hand, the Government’s position is that the facilities are not for peaceful purposes; rather, they have a military purpose, in which case, in a British court, it could be adduced that they do not fall within the definition because some would argue that they have a military utility.
There might be a perfectly proper reason for the specific definition, but it seems curious and perhaps less well specified than it might be.

Maria Eagle: The reason is perfectly simple: the convention does not apply to military sites or materials, so the measures cannot do so. We are simply amending the convention as all agree it should be amended, which does not relate to military facilities.

David Heath: I am simply making the point that that exclusion makes it more difficult to bring an effective prosecution. There will be grey areas of definition. For instance, is a civilian institute that uses nuclear material to develop nuclear safety and protection for our troops in the field a peaceful or a military institution? It is difficult to establish on which side of the line such an institution will lie in terms of the definition. It would in some respects be a purely defensive, almost academic institution, but it would use the research that it undertook for military purposes—the proper protection of our servicemen and women when they are in the field—and therefore fall foul of the clause.
I am simply saying that however well the provision may have read in the treaty and in the convention, in British law it is a bit of a nonsense. We should at least be aware that we are passing nonsense, even if we think it a good idea to pass the nonsense to bring ourselves into line with our international obligations.
My last point is made in response to the intervention by the hon. Member for Kettering. There have been perfectly good previous statutory and legislative vehicles for the measure. If it was agreed in 2005, we have had anti-terrorism legislation that could easily have been used for the purpose, raising the question why the Government did not feel it necessary to enact the measure until now, in this compendious cornucopia that we call the Criminal Justice and Immigration Bill.

Edward Garnier: I want to ask the Minister a couple of questions. We must be careful when we extend the jurisdiction of our courts to extraterritorial offences, although I fully accept that it is necessary, for example, to protect our armed forces from charges under this aspect of the Bill in the event of our being at war. It raises the question whether anybody who does anything against us, albeit in the course of a military conflict, is protected from prosecution. I presume that they are, unless the Secretary of State issues a certificate exempting them from the protection. Let us not worry about that too much, however.
The question I really want to ask is this. Assuming that the offence is committed overseas, but by virtue of the Bill is prosecutable in this jurisdiction, would our prosecutors wait to see whether the country where the act took place prosecuted, and prosecute in this country only if there were no prosecution in the country where the act took place? Alternatively, would there or could there be a prosecution in both?

Maria Eagle: Will the hon. and learned Gentleman give way?

Edward Garnier: I had finished.

Maria Eagle: In that case, the hon. and learned Gentleman has been remarkably succinct, for which I thank him. His first scenario is correct: we would wait to see whether there were a prosecution in the jurisdiction where the event took place. If there were not, and we had the person in our grasp, the prosecution could be undertaken in this country.
I have dealt to the extent that I can with the points that the hon. Member for Somerton and Frome made. I cannot extend the convention’s reach beyond that for which it was originally negotiated, so it is not possible for the offences, which are an amendment to the convention, to range more widely than its ambit. In that sense, parameters have been drawn. He may not like the fact that—[Interruption.] He is chuntering, so he obviously has not received a good enough answer.

David Heath: I do not want to interrupt the Minister, but that argument is demonstrably not true. We are bound by our signing of the convention to put into effect that which is in the convention. Our signing does not limit us to that which is in the convention if it is better to extend it through statute law in this country.

Maria Eagle: No, indeed. However, the hon. Gentleman may recall my saying that the clause is designed to put into effect the amendments to the convention—simply that.

David Howarth: Will the Minister give way?

Maria Eagle: If the hon. Gentleman will give me a moment to finish my sentence, I shall happily give way to him.
I am not commenting on the range and ambit of the entire policy; I am simply saying that the clause and schedule 15 are about implementing the offences that we must implement to ratify the amended convention. That is simply what the Bill does, and in that sense I do not seek to go further. In the broader policy sense, the hon. Member for Somerton and Frome is perfectly right to say that, if one wished to apply offences to a wider range of activities or places, Parliament could do that—Parliament is sovereign—but that is not what we are seeking to do in the Bill. There is not much more I can say about that.

David Howarth: I should be grateful if the Under-Secretary answered a general question, either now or later. Does the treaty require the regime of conclusive certifying by the Secretary of State? If it does not, the question arises whether that is the right approach.
May I put a hypothetical case to the Under-Secretary? It may be fanciful, given present Government policy, but a future Government might take a different view. Let us say that a country—perhaps the United States—bombed an Iranian nuclear facility. If the question whether that was an action by armed forces arose and, for some reason best known to the Government of the day, the Secretary of State refused to issue a certificate under the appropriate section—new section 3A to the Nuclear Material (Offences) Act 1983, inserted by paragraph 5 of the schedule—there would then be a question whether the facility was military or peaceful. That matter is also, as I understand it, to be determined conclusively by the Secretary of State. A future Secretary of State could determine conclusively that such a facility was not military and was therefore peaceful. At that point, the armed forces of the other country would become subject to the universal jurisdiction that my hon. Friend the Member for Somerton and Frome mentioned and a case in the British courts becomes a possibility.

Maria Eagle: Academic law is a wonderful thing, is it not? Hypotheticals are part of it. To answer the hon. Gentleman’s specific questions, the certification by the Secretary of State is not mandated in the convention, but that is the mechanism that we choose to adopt to deal with the issues in this jurisdiction.

David Howarth: The point was not that that might happen, but to illustrate the anomalies that might arise from using the mandatory conclusive certifying process, and to say that there might be a different way of doing it under which such difficulties would not occur.

Maria Eagle: I am certain that there is probably another way of doing it, but this is how we choose to do it. I am happy to hear from the hon. Gentleman if he thinks of a better way that we ought to consider in future.

David Burrowes: Will the Under-Secretary clarify, either now or later, the timing of the provisions in relation to the incitement offence? I understand that that is, in effect, a transitional provision under the Serious Crime Act 2007. What will the timing be in relation to that Act and the Bill we are discussing? Which comes first? For how long will that be a transitional provision?

Maria Eagle: Speaking from memory, as the provisions on encouraging and assisting in the Serious Crime Act come into force, they ought to cover what are currently common law offences. That ought to deal with the issue. I am trying to remember when the provisions on inchoate offences come into force. Whenever that happens, the transition will be over. I hope that that assists the hon. Gentleman. I just don’t have the date in my head and I apologise to the Committee for that, but it should not be in the too-far-distant future.
I hope that I have dealt with the points that hon. Members have raised. I commend the schedule and the amendments to the Committee.

Amendment agreed to.

Amendments made: No. 225, in schedule 15, page 185, line 39, after ‘(2)(b)’ insert ‘, (2)(ba)’.
No. 226, in schedule 15, page 186, line 3, at end insert—
‘(5) In subsection (2)(ba) the reference to incitement is—
(a) a reference to incitement under the law of Scotland, or
(b) in relation to any time before the coming into force of Part 2 of the Serious Crime Act 2007 (encouraging or assisting crime) in relation to England and Wales or Northern Ireland, a reference to incitement under the common law of England and Wales or (as the case may be) of Northern Ireland.’.—[Maria Eagle.]

Schedule 15, as amended, agreed to.

Clause 75

Imprisonment for unlawfully obtaining etc. personal data

Question proposed, That the clause stand part of the Bill.

Edward Garnier: I want to discuss an anomaly that arises between the current civil liability under the Data Protection Act 1998, section 55, and the intended criminal liability that will emerge from clause 75, if and when it becomes the law of the land.
First, I have an interest, or used to have an interest, in this area of the law. I want to talk particularly about journalistic endeavour and activity, so I am speaking as someone who acts for and against newspaper journalists, publishers of one sort of another and it is right that I should put that on the record.
Secondly, I want to clarify a point that the Under-Secretary of State for Justice and I were discussing last week on the nature of the privilege that attaches to fair and accurate reports of the proceedings of Parliament. She was correct to say that in relation to Parliament, even contemporaneous fair and accurate reports are covered only by qualified privilege. However—this is where I confess to the confusion—judicial proceedings, when reported fairly, accurately and contemporaneously are covered by absolute privilege. Since we last met to discuss that subject I have yet to find a logical explanation of that difference; I think that it is one of those historical accidents where the statute law, which has amended the common law, has not caught up with itself. There may come a time when it does. I am happy to correct my earlier mistake.
I approach this discussion purely from the angle of journalistic activity; I am not concerned with discussing the fiasco over the data issues relating to Her Majesty’s Revenue and Customs, which is causing the Government and the Chancellor of the Exchequer rather a lot of embarrassment. I am not talking about data theft by malevolent people who wish to mine other people’s data sources and make improper use of data and sell it. Other occasions may come when others will want to talk about the Chancellor, the HMRC fiasco and so on, but today I do not want to deal with that.

Edward O'Hara: As long as they are in order when they do so, they may.

Edward Garnier: When I said “on other occasions”, I meant on other parliamentary occasions. If others want to talk about it and they are in order today, I am sure that you would be very pleased to hear what they have to say, Mr. O’Hara, but I say for the third or fourth time that I am specifically referring to journalistic activity.
That is not necessarily a surprising thing to do because the Human Rights Act 1998 makes specific reference to journalistic activity. When we have a collision, as we frequently do, between competing rights—the right of free expression and the right of privacy—it is important that we as law makers get it right when we have the opportunity. Certainly under the common law, but now under the European convention where articles 8 and 10 come into play, there is that dispute between free expression and privacy. Under clause 75 and the underlying legislation, the Data Protection Act 1998, we have a similar collision.
The Secretary of State for Justice has acknowledged that difficulty. Recently—I do not know when; I should have checked, but it may well have been on Second Reading—he said that there were concerns about the misuse of personal data and that new rules in the Bill had caused concern because they might impede legitimate investigative journalism. As far as I can remember, he did not come up with any solutions for dealing with that difficulty. Relatively recently—in October—the Prime Minister also acknowledged it. You will remember, Mr. O’Hara, that the Prime Minister appointed the editor of the Daily Mail, Paul Dacre to review the 30-year rule on releasing secret papers. In a speech on liberty in modern Britain, the Prime Minister also said that a review of data protection law would be carried out by the Information Commissioner, Mr. Richard Thomas, who will also seek to protect legitimate investigative journalists from a planned crackdown on the trade in personal data, such as bills and health records. The Prime Minister announced a three-month public consultation on extending the scope of the Freedom of Information Act 2000, which allows the public to request confidential information from public bodies.
Why has clause 75 been made part of the Bill before the consultation process that was announced in October by the Prime Minister is completed? The answer to that may well be, as it so often is, that Bills are not implemented. Therefore, if this provision is passed into law, it may not be implemented until after the consultation process is complete. If it is, I suspect that the Government are putting the cart before the horse.
What we want, certainly in relation to journalistic activity, is a proper balance and sense of proportion. The Bill should allow for vigorous, journalistic and investigative activity which is in the public interest, and/or which the investigating journalist considers to be in the public interest during his investigation, while at the same time affording all proper protection to the data subject.
As I understand it, since 2004 there have been 26 prosecutions under section 55 of the Data Protection Act 1998, brought by the Information Commissioner. Of those prosecutions, only four have been in the Crown court—the others have all been in the magistrates courts—and only two have resulted in fines of more than £5,000. Where is the pressing social need to introduce, on summary conviction, a term of imprisonment “not exceeding 12 months”, or
“a fine not exceeding the statutory maximum, or...both”
but, “on conviction on indictment”— in the Crown court—
“imprisonment for a term not exceeding two years”,
or an unlimited fine? We must ask whether this measure is necessary and proportionate when we are dealing with legitimate investigative journalism, and when there is a difference between the civil and the criminal regimes—the civil regime as it currently is, and the criminal regime as it is intended to be under the Bill.
In making these remarks, I am relying upon assistance from the Newspaper Publishers Association, the Newspaper Society, the Periodical Publishers Association, the Scottish Newspaper Publishers Association and the Society of Editors. They have responded to the consultation paper, “Increasing penalties for deliberate and wilful misuse of personal data”, issued by the Government and the Information Commissioner. My concern, which is both informed by my own practical experience as a newspaper lawyer and based upon the advice of those groups, is that to introduce without justification a disproportionate sanction capable of discouraging the press from investigating matters of legitimate public concern, could have chilling effect on press freedom in this country.

Maria Eagle: Does the hon. and learned Gentleman not believe that the defences already available under section 55 of the Data Protection Act are adequate? Is he just making the point about a chilling effect, or is he saying that the defences available are not sufficient to enable journalists to pursue legitimate matters of public interest?

Edward Garnier: As I hope to explain as I develop my case, there is a distinction between the defences available at criminal law and at civil law. It seems to us that there should be no higher test in defending a criminal prosecution than in resisting liability under a claim for civil compensation. The Minister will know that a charge can be defended under section 55(2)(d) of the Data Protection Act when it can be shown
“that in the particular circumstances the obtaining, disclosing or procuring was justified as being in the public interest.”
That language is to be contrasted with the language in section 32(1) of that Act, which states that the requirement for exemption from civil liability depends upon a journalist showing that he reasonably believed that publication would be in the public interest.
The difference in statutory language between those two sections produces the bizarre result that if a journalist investigating accusations of improper conduct, for example by a business man or a senior politician, proceeded in the honest and reasonable but mistaken belief that publication would be in the public interest, he would be able to establish an exemption from civil liability but not a defence against a criminal charge arising from the same facts. That anomaly, to which I referred at the outset, is a matter of serious concern. It will be significantly more serious if clause 75 is accepted and increases the penalty for offences under section 55 of the Data Protection Act from a fine to a sentence of imprisonment.
To return to the Minister’s points, every newspaper or magazine publisher is a data controller for the purposes of the Data Protection Act. Many journalists, particularly those operating on a freelance basis, are also data controllers for the purposes of that Act. The courts have held that the operations involved in producing a printed newspaper using electronic equipment inevitably amount to processing of data for the purposes of the Act and that that processing will include the acquisition, recording and use of information by journalists. Under the provisions of the Act, such processing may potentially give rise to both civil and criminal liability.
Civil liability may arise if the publisher or journalist breaches the statutory duty imposed by section 4(4) of the Act, which requires compliance with the data protection principle set out in part I of schedule 1. The Court of Appeal has recognised that in the operations required for the production and publication of a newspaper,
“it will be impractical to comply with many of the data processing principles.”
It follows that publishers and journalists are likely to incur civil liability for breaches of the Data Protection Act unless the exemption relating to journalism provided by section 32 can be invoked.
In the Naomi Campbell case against Mirror Group Newspapers—I do not know whether the Minister remembers it—the Court of Appeal held that the provisions of section 32 of the Act provide
“widespread exemption from the duty to comply with the provisions that impose substantive obligations upon the data controller”,
and that that widespread exemption applied both before and after publication. In practical terms the effect of section 32, as interpreted by the Court of Appeal in the case of Campbell, is to make available an exemption from civil liability for publishers and journalists, subject only to the following simple conditions set out in section 32(1)(b) and (c): first, that
“the data controller reasonably believes that, having regard in particular to the special importance of the public interest in freedom of expression, publication would be in the public interest”;
and secondly, that
“the data controller reasonably believes that, in all the circumstances, compliance”
with the data protection principles is incompatible with the purposes of journalism. The vital words contained in those conditions are
“the data controller reasonably believes”.
The effect of those words is that to invoke the exemption, the data controller does not have to prove that the publication to which the process relates would be in the public interest, only that he “reasonably believes” that it would be in the public interest.
That acknowledges the reality of deadline journalism. In the early stages of investigating a story, there may be reasonable grounds to believe that publication would be in the public interest, although it may ultimately transpire after full investigation that that is not so. It also avoids the imposition of civil liability on the journalist who honestly and reasonably, but mistakenly, believes that publication would be in the public interest.
The importance of that approach and the latitude that it allows to responsible journalists was expressly recognised by the then Under-Secretary of State for the Home Office Department, the right hon. Member for Knowsley, North and Sefton, East (Mr. Howarth), in the Standing Committee that scrutinised the Data Protection Bill. He said:
“Given the high importance of freedom of inquiry and expression to our society, we must, on balance, favour publication, subject to reasonable restraint on the journalist's actions. The present test has been designed with some care to do that. Of course journalists might get it wrong that is in the nature of things. But they need to get it significantly wrong before the law should intervene...We should maintain a proper emphasis on freedom of expression—[Official Report, Standing Committee D, 21 May 1998; c. 213.]
That is what the then Minister said when dealing with the civil regime under the 1998 Act.
As it is obvious that potential criminal liability might have more serious consequences for a journalist than potential civil liability, one would expect the same or a greater degree of latitude to be offered to a journalist in the provisions of the Act relating to criminal liability, but that is not the case, as we know. Section 55(1) of the Data Protection Act makes it a criminal offence for a person to
“knowingly or recklessly, without the consent of the data controller—
(a) obtain or disclose personal data or the information contained in personal data, or
(b) procure the disclosure to another person of the information contained in personal data”.
Clearly, investigative journalists may often obtain information directly or through a source without seeking the consent of the data controller holding the data containing that information. One has only to take the common example of an investigation into allegations of improper or unethical practices within a business organisation. Such a story could not be investigated effectively, particularly if a source within the business organisation was involved, without risking criminal liability under section 55 of the 1998 Act. Obtaining the information will almost certainly also give rise to potential civil liability, as it will be impracticable to comply with the data protection principles. The journalist will be able to invoke the provisions of section 32 to secure exemption from civil liability on the grounds that he reasonably believes that publication would be in the public interest, so why should he not also have at least the same level of protection from potential criminal liability arising from the same facts?
That anomaly is a matter of serious concern as the Act stands, and it will be exacerbated by implementation of clause 75. I have informed the Committee of the genesis or origin of those concerns, which I share, both as a newspaper lawyer and as a citizen. As I understand it, we have yet to see—certainly the people advising me on the issue have yet to receive—a rational response to their concerns, which they have passed to the Government. I shall leave it to the Minister to explain the Government’s response to my points, although I am sure that I know what it is.
First, the imprisonment sanction will have the chilling effect that the Minister mentioned in her intervention. To introduce imprisonment for investigative journalists who obtain information without the consent of the data controller who holds the data containing that information in circumstances when the journalist may be unable to establish that the obtaining was justified in the public interest is self-evidently capable of discouraging the press from actively pursuing the investigation of allegations raising matters of legitimate public interest, and accordingly is capable of having a chilling effect on press freedom.
Those concerns have not just been dreamt up in the bars of Fleet street or in the offices of lawyers who benefit from work from media companies.
In a judgment made by the European Court of Human Rights, on 17 December 2004, on the case of Cumpana v. Romania, a grand chamber of 17 judges, in the course of finding that the imprisonment of a journalist had infringed his article 10 rights on freedom of expression, stated:
“Although the Contracting States are permitted, or even obliged, by their positive obligations under Article 8 of the Convention”,
which deals with the protection of privacy, family life and so forth,
“to regulate the exercise of freedom of expression so as to ensure adequate protection by law of individuals’ reputations, they must not do so in a manner that unduly deters the media from fulfilling their role of alerting the public to apparent or suspected misuse of public power... Investigative journalists are liable to be inhibited from reporting on matters of general public interest—such as suspected irregularities in the award of public contracts to commercial entities—if they run the risk, as one of the standard sanctions imposable for unjustified attacks on the reputation of private individuals, of being sentenced to imprisonment or to a prohibition on the exercise of their profession.”
It continued:
“The chilling effect that the fear of such sanctions has on the exercise of journalistic freedom of expression is evident”.
A little while later, it said:
“Such a sanction, by its very nature, will inevitably have a chilling effect.”
In my view—I was going to say “and in the view of those who instruct me in this matter”, but hon. Members know what I mean.

Maria Eagle: They are not paying you are they?

Edward Garnier: No they are not. This is a public duty, which I enjoy.
In my view, it follows that the introduction of custodial sentences for section 55 offences committed by journalists is capable of interfering with their article 10 rights. Accordingly, under the consistent jurisprudence of the European Court of Human Rights, the introduction of those sanctions cannot be justified, unless there is a pressing social need and the interference is proportionate to the legitimate aim pursued. Furthermore, the reasons for introducing those sanctions must be relevant and sufficient.
The inclusion of a penalty of imprisonment within the civil liability deterrent regime has not been shown to be a necessary response to any pressing social need, or to be proportionate or otherwise justified. I said at the beginning of my remarks that there have been only 26 prosecutions under section 55 of the 1998 Act and that only two of those resulted in fines of more than £5,000. If that is correct, and on the facts as we know them, there does not seem to be a need to ratchet up the criminal regime so dramatically.
According to the Government’s response to the consultation process, or at least to the remarks from the groups that I mentioned before—the editors and so forth—they do not expect the number of prosecutions to increase if custodial sentences are made available. It must follow, therefore, that the prosecution of offences has not been discouraged by the lack of custodial sentences. Furthermore, in view of the few prosecutions that have taken place, the penalties imposed have tended to be modest fines—some in the low hundreds—even though a conviction on indictment makes an unlimited fine available.
The facts and arguments that I have presented to the Committee suggest that existing penalties are more than sufficient to deal with offences under section 55. On that basis, I urge the Government to rethink clause 75 and to consider whether their proposals are necessary and justified.

Maria Eagle: I have been listening intently and shall try to deal with the points that the hon. and learned Member for Harborough made. However, it might be helpful if first I set out what we are doing in clause 75 and why.
The clause amends section 60 of the Data Protection Act 1998 to increase the penalties for offences under section 55 of the Act to allow for a period of imprisonment of six months in a magistrates court up to two years on indictment. It increases the current penalty, as the hon. and learned Gentleman said, which is limited at present to fines in either a magistrates or Crown court.
Section 55(1) and (3) of the Act provide that a person is guilty of an offence if they knowingly or recklessly, without the consent of the data controller, obtain or disclose or procure the disclosure of personal data to another person. Section 55(4) and (5) provide that a person is guilty of an offence if they sell or offer to sell personal data obtained in breach of section 55(1).
I wish to make it absolutely clear that the origin of the clause has nothing to do with trying to create a chilling effect on the legitimate activity of investigative journalism. It has nothing to do with that at all. The Information Commissioner’s report “What price privacy? The unlawful trade in confidential personal information”, which was laid before Parliament on 10 May 2006, highlighted the extent of the illegal trade in personal data and recommended custodial sentences for offences relating to its misuse, as the existing financial penalties were not sufficiently protecting individuals’ rights.
On 24 July 2006, the Government published a consultation paper “Increasing penalties for deliberate and wilful misuse of personal data”. They invited comments on proposals to increase the penalties available to include custodial sentences. The consultation closed on 30 October 2006. The majority of responses—not all of them—welcomed the introduction of custodial penalties to provide a greater deterrent to potential offenders and public reassurance that offenders would receive the appropriate sentence, and to achieve parity with several disparate pieces of legislation that deal with similar types of offence.
That is the origin of clause 75. I reiterate that the intention is not to try to undermine or chill in any way legitimate investigative journalism, nor do we wish inadvertently to cause problems in that regard. As the Committee will be aware, the clause does not create any new criminal offences. The hon. and learned Gentleman did not say that it did—I am not suggesting that he said that.

Edward Garnier: You are reading the wrong paragraph.

Maria Eagle: I am making it up. I am not reading any paragraph. I do sometimes read out paragraphs, but I am not doing so at present. The hon. and learned Gentleman was doing a fair amount of reading himself. I am sure that it was stuff that he had prepared earlier.
We are not creating a new criminal offence. [Interruption.] Everyone is chuntering this afternoon, Mr. O’Hara. It must be something to do with the time. In any event, I shall try to deal with some of the points that the hon. and learned Gentleman made.
We are not creating a new criminal offence. As a result of the process, we are increasing the penalty because we have been convinced that we need to do so. I do not want us to have too arcane an argument, but the hon. and learned Gentleman suggested that the defence for the civil offence under section 32 of the 1998 Act was of a higher threshold than the defence for the criminal offence under section 55. I am not convinced of that. We could debate exactly where the threshold is, but the point of much of what he was saying was bound up in that. If there are civil and criminal penalties for similar offences, one can understand why the threshold for the civil offence ought to be lower than for the criminal offence. That is common sense under our system of law.
However, sections 32 and 55 of the 1998 Act are different in numerous respects. Section 32 gives media organisations exemption from some parts of the Act that apply to them as data controllers. It exempts them from most of the data protection principles and certain other provisions of the 1998 Act if, after due regard to the public interest and freedom of expression and publication, they reasonably believe that publication is in the public interest.
Section 55, however, is not about the normal business of being a newspaper in the same way. It concerns a wilful obtaining, disclosing or procuring of information without the data controllers’ consent. The prohibitions in this section apply equally to everyone, as do the defences listed in 55(2). Section 55(2)(D) requires that the knowing or reckless obtaining, disclosing or procuring of information without the consent of the data controller to be justified in the public interest.
The purposes of those two provisions are very different. Section 32 ensures that the data protection principles do not prevent or inhibit responsible journalism, while section 55 ensures that the prohibition on the misuse of personal data does not prevent disclosures that are in the public interest. The Government do not believe that it is necessary to amend section 55 and to extend the exemption in section 32. We are not proposing to criminalise any behaviour that is not currently against the law. The section 55 offence with its public interest and other defences is a proportionate measure to deal with the risk to people’s privacy.
I accept that not everyone will agree with that. The hon. and learned Gentleman set out in great detail the reasons why he does not. Let me assure him that there is no intention to create a chilling effect, and to inhibit in any way responsible investigative journalism. Not everyone accepts that there would be a chilling effect. When the Committee on Culture, Media and Sport was considering self-regulation for the press, it looked at this provision and suggested that the penalty did not have a chilling effect, and it welcomed the amendment. There are other reasons of public policy for signalling very strongly that the obtaining and selling of public or private data is not only a breach of human rights, but a matter that causes a great deal of damage and it ought to be treated as seriously as the provision suggests.
As the hon. and learned Gentleman knows, because of his close interest in this matter, there have been meetings between newspapers and various interests who believe very strongly what he, the former Lord Chancellor, former Ministers and the Department for Constitutional Affairs put forward in respect of this. I am not saying that we will all agree, but we have considered the matter very carefully. We believe that the current clause is correct. While I am not promising to make any changes, I am perfectly happy to look very closely at what has been said today. I do not feel convinced that the hon. and learned Gentleman is right, but I will look very closely at what he has said and talk to him and the Newspaper Society further about it. However, we believe that clause 75 is the right provision. I have heard what the hon. and learned Gentleman has had to say, but I commend the clause to the Committee.

Edward Garnier: I am grateful to the Minister for her explanation of her Department’s policy. May I say that the chuntering was an unnecessary intervention, and that the further chuntering was my attempt to apologise for that from a sedentary position?
There are a number of illogicalities and inconsistencies in the Government’s approach. It may be that in the rush to make laws and so forth, No. 10 is not talking to the Ministry of Justice and vice versa. [Interruption.] I interpret what the Minister of State is saying and that is not in the least bit unusual. It is interesting that the Prime Minister has said that he wants a further consultation period and an investigation or inquiry into the way in which the Freedom of Information Act and its provisions work and has asked Paul Dacre, the editor-in-chief of the Daily Mail to chair that investigation.
The Secretary of State for Justice said that the Bill raises concerns that it
“might impede legitimate investigative journalism”.—[Official Report, 25 October 2007; Vol. 465, c. 409.]
However, the clause will ratchet the penalty up. I am not talking about data thieves or blackmailers, even if part of the Minister’s response concentrated on that. I am not seeking to defend reckless, negligent or deliberately ill-motivated conduct by data processors—I would call it Her Majesty’s Revenue and Customs’ story and the Minister will doubtless hear more of it in due course because the Chancellor of the Exchequer will tell her. I want to ask her about what is in the journalist’s mind at two different times. If we look at the civil regime, we will see that it is anticipatory because the defence applies if
“the data controller reasonably believes that, having regard in particular to the special importance of the public interest in freedom of expression, publication would”—
in future—
“be in the public interest”
or, secondly, if he
“reasonably believes that, in all the circumstances, compliance with”
data protection principles
“is incompatible with the...purposes”
of journalism. We are therefore looking ahead when it comes to the civil liability regime, which allows the journalist to have some form of subjective input to his defence whereas, under the criminal regime, he has to show
“that in the particular circumstances the obtaining, disclosing or procuring was justified”—
that measure uses the imperfect tense—
“as being in the public interest”.
A proper construction of the expression
“was justified as being in the public interest”
is an object test, which the court, jury or magistrate will assess for themselves on the basis of the evidence before them and the advice they receive on the meaning of the expression “the public interest”.
Having said all that, I am grateful to the Minister for indicating that she would be prepared to read carefully the report of our discussions with her officials and the Department’s lawyers, and also for offering me the opportunity to have further meetings with the Fleet Street Lawyers’ Society. I mentioned Alastair Brett, who is the secretary of that group; he is also legal manager of The Times newspaper group, so I am talking about major media operators, not irresponsible, dodgy, fly-by-night members of the yellow press. Such people have a legitimate and responsible attitude toward both the need to protect people’s privacy and the need to take a proper interest in maintaining, and fighting hard for, the fundamental right of freedom of expression.
I shall take up the Minister’s offer and get back to those who have been in touch with me to see whether they would like to meet the Minister. Perhaps meetings can take place between now and Report, or at least before the Bill leaves this House and goes to the other place. I am reasonably sure that the clause will receive close attention in the other place, whose Members will not be under the same time constraints as us. I suspect that that will be the case because Lord Lester of Herne Hill was very busy during the deliberations on the Human Rights Act 1998 when discussing journalistic endeavour, as was my noble Friend Lord Fowler, who is both an ex-journalist and a newspaper executive. There will be plenty of interest in the clause in the other place, so it would be useful if the Minister would hold those meetings before the Bill goes there. Given those offers, which I accept with alacrity, I withdraw my resistance.

Question put and agreed to.

Clause 75 ordered to stand part of the Bill.

Clause 76

Requests to other member States

Vernon Coaker: I beg to move amendment No. 257, in clause 76, page 54, line 4, after ‘imposed’ insert
‘by a court in England and Wales’.

Edward O'Hara: With this it will be convenient to discuss Government amendments Nos. 258 to 269, 278 to 284, 270 to 274, 285, 275 to 277, and 371.
Government new clause 42—Requests to other member States: Northern Ireland
Government new clause 43—Procedure on receipt of certificate by Lord Chancellor: Northern Ireland.
Government new clause 44—Modification of Magistrates’ Courts Act 1980.
Government new clause 45—Requests from other member States: Northern Ireland.
Government new clause 46—Procedure on receipt of certificate by clerk of petty sessions.
Government new clause 47—Modification of Magistrates’ Courts (Northern Ireland) Order 1981.
Government new clause 48—Transfer of certificates to central authority for Scotland.
Government new schedule 5—Penalties suitable for enforcement in England and Wales or Northern Ireland.

Vernon Coaker: Thank you, Mr. O’Hara. This is the first time I have had the pleasure of speaking while you are chairing the Committee, so I welcome you to the Chair. I might well be speaking for much of the rest of the sitting.
The amendments are technical, and I commend them to the Committee.

David Heath: I have a brief observation to make. It is interesting that this part of the Bill, which has been introduced by a Home Office Minister, specifies that the Lord Chancellor has certain functions, whereas parts introduced by Justice Ministers specify the Secretary of State. Why was it necessary to specify the Lord Chancellor by title in this part of the Bill, but not in previous or subsequent parts?

Vernon Coaker: I think that it is because that is the appropriate title to use in this part of the Bill.

Amendment agreed to.

Amendment made: No. 258, in clause 76, page 54, line 11, at end insert—
‘( ) any fine or other sum mentioned in section (Requests to other member States: Northern Ireland)(4)(b)(i) to (iii), or any fine imposed by a court in Scotland, which is enforceable in a local justice area in England and Wales by virtue of section 91 of the Magistrates’ Courts Act 1980 (c. 43);’.—[Mr. Coaker.]

Clause 76, as amended, ordered to stand part of the Bill.

Clause 77 ordered to stand part of the Bill.

Clause 78

Requests from other member States

Amendments made: No. 259, in clause 78, page 54, line 45, at end insert ‘, and
( ) the financial penalty is suitable for enforcement in England and Wales (see section 80(A1)).’.
No. 260, in clause 78, page 55, line 1, leave out from ‘certificate’ to third ‘the’ and insert ‘states that’.
No. 261, in clause 78, page 55, line 6, leave out from beginning to third ‘the’ in line 7 and insert ‘Otherwise,’.
No. 262, in clause 78, page 55, line 8, leave out ‘may’ and insert ‘must’.
No. 263, in clause 78, page 55, line 17, leave out paragraph (a).
No. 264, in clause 78, page 55, line 22, at end insert—
‘( ) Where—
(a) the competent authority or central authority of a member State other than the United Kingdom gives the central authority for Scotland the documents mentioned in subsection (1), and
(b) without taking any action to enforce the financial penalty in Scotland, the central authority for Scotland gives the documents to the Lord Chancellor,
this section applies as if the competent authority or central authority gave the documents to the Lord Chancellor.’.
No. 265, in clause 78, page 55, line 23, leave out subsection (6).—[Mr. Coaker.]

Clause 78, as amended, ordered to stand part of the Bill.

Clause 79 ordered to stand part of the Bill.

Clause 80

Recognition of financial penalties: supplemental

Amendments made: No. 266, in clause 80, page 56, line 15, at end insert—
‘(A1) Schedule (Penalties suitable for enforcement in England and Wales or Northern Ireland) specifies when a financial penalty is suitable for enforcement in England and Wales for the purposes of section 78(1) and when a financial penalty is suitable for enforcement in Northern Ireland for the purposes of section (Requests from other member States: Northern Ireland)(1)’.
No. 267, in clause 80, page 56, line 17, leave out 'and 79(3) and (5)’ and insert
‘, 79(3) and (5), (Requests from other member States: Northern Ireland)(4)(a) and (Procedure on receipt of certificate by clerk of petty sessions)(3) and (5)’.
No. 268, in clause 80, page 56, line 22, at end insert—
‘( ) modify the enactments specified in section (Procedure on receipt of certificate by clerk of petty sessions)(6) in their application to financial penalties by virtue of that provision, and’.
No. 269, in clause 80, page 56, line 27, at end add—
‘( ) Northern Ireland legislation;
( ) any instrument made, before the passing of this Act, under Northern Ireland legislation.’.—[Mr. Coaker.]

Clause 80, as amended, ordered to stand part of the Bill.

Schedule 16

Grounds for refusal to enforce financial penalties

Amendments made: No. 278, in schedule 16, page 188, line 27, leave out ‘England and Wales’ and insert
‘the relevant part of the United Kingdom’.
No. 279, in schedule 16, page 188, line 28, leave out ‘England and Wales’ and insert ‘that part’.
No. 280, in schedule 16, page 188, line 28, at end insert—
‘() In sub-paragraph (1), “the relevant part of the United Kingdom” means—
(a) in the application of this Schedule to England and Wales, England and Wales, and
(b) in the application of this Schedule to Northern Ireland, Northern Ireland.’.
No. 281, in schedule 16, page 188, line 31, leave out ‘England and Wales’ and insert
‘the relevant part of the United Kingdom’.
No. 282, in schedule 16, page 188, line 32, leave out ‘England and Wales’ and insert ‘that part’.
No. 283, in schedule 16, page 188, line 32, at end insert—
‘() In sub-paragraph (1), “the relevant part of the United Kingdom” has the same meaning as in paragraph 3(1).’.
No. 284, in schedule 16, page 190, line 25, leave out sub-paragraph (1).—[Mr. Coaker.]

Schedule 16, as amended, agreed to.

Clause 81

Interpretation of sections 76 to 80

Amendments made: No. 270, in clause 81, page 56, line 29, at end insert
‘and Schedules (Penalties suitable for enforcement in England and Wales or Northern Ireland) and 16’.
No. 271, in clause 81, page 56, line 30, after ‘State’ insert ‘other than the United Kingdom’.
No. 272, in clause 81, page 56, line 32, at end insert—
‘ “central authority for Scotland” means the person or body which, by virtue of an order under section 56 of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6) (recognition of EU financial penalties), acts as the central authority in relation to Scotland for the purposes of the Framework Decision;”’.
No. 273, in clause 81, page 56, line 39, at end insert—
‘( ) In sections 78, 79, (Requests from other member States: Northern Ireland), (Procedure on receipt of certificate by clerk of petty sessions), (Modification of Magistrates’ Courts (Northern Ireland) Order 1981), (Transfer of certificates to central authority for Scotland) and 80 and Schedules (Penalties suitable for enforcement in England and Wales or Northern Ireland) and 16—
“decision” has the meaning given by Article 1 of the Framework Decision on financial penalties (except in sections 79(4) and (Procedure on receipt of certificate by clerk of petty sessions)(4));
“financial penalty’’ has the meaning given by that Article.’.
No. 274, in clause 81, page 56, line 40, leave out ‘those sections’ and insert ‘sections 76 to 80’.—[Mr. Coaker.]

Clause 81, as amended, ordered to stand part of the Bill.

Clause 82 ordered to stand part of the Bill.

Clause 83

Violent offender orders

Harry Cohen: I beg to move amendment No. 325, in clause 83, page 57, line 20, leave out ‘the public’ and insert ‘a person or specified persons’.

Edward O'Hara: With this it will be convenient to discuss the following: Amendment No. 326, in clause 83, page 57, leave out lines 26 and 27 and insert
‘any specified members of the public in the United Kingdom’.
Clause stand part.
Amendment No. 327, in clause 86, page 59, line 35, leave out ‘the public’ and insert
‘a person or specified persons’.

Harry Cohen: My amendments are probing amendments, although they are a little radical. At least one of them would wipe out clauses 83 to 102, which I thought might appeal to my hon. Friend the Whip, as well as to other members of the Committee, because it would save time.
I want the Government to justify and explain how they will use violent offender orders. As with earlier amendments, I tabled these on behalf of Liberty, which has raised several concerns. It is not that I am trying to get rid of violent offender orders, but Liberty has made the case that non-molestation orders could be used as an alternative approach. However, that amendment has not been chosen for discussion, although it will be part of the package of proposals that I shall be speaking about.

David Heath: The hon. Gentleman knows that I agree that the extension of non-molestation orders might prove an acceptable alternative to, or substitute for, the clause. Does he agree that it would be helpful if the Minister could say whether the Government even considered such a proposal before they drafted this new class of order, which seems to many of us superfluous?

Harry Cohen: The point has been made and I hope that, when the Government respond in the clause stand part debate, they will at least say how they view the non-molestation order.
The proposed violent offender orders continue the trend of creating civil orders, a breach of which would become a criminal offence. I share Liberty’s view that the orders could become too broad in their application and breach some of the conventions that we are rightly tied up to. Liberty also makes the point that, if the order is too broad, it is more likely to be breached. A person can get caught up in just too many things, instead of the order covering something specific so they know where they are. It said that extraordinary scope will be available for the imposition of restrictions on individual freedom under the clause.
Liberty is saying that the order is unnecessary in some ways because the Criminal Justice Act 2003 provides for anyone convicted of specified offences, punishable by more than 10 years’ imprisonment—violent offences—will be given an indefinite period of imprisonment for public protection and, once released from prison, will be on licence for a minimum of 10 more years. After that, they can apply to the Parole Board for termination of the licence, but the Parole Board might not decide to do so if it regards the person as such a risk. If it does not do so, the person would still be subject to conditions and to recall. The necessity of the orders is in question.
I should like a response from the Under-Secretary about a good point that Liberty makes about retrospection. It seems that, at least initially, the orders could be used retrospectively. Prisoners coming out of prison who were sentenced under the old system may suddenly find orders applied to them under this legislation. That would be a retrospective application of the provision. Again, that could put us in breach of our international legal obligations. Will the Under-Secretary say something about whether that is the intention? That may be justified, but I am not entering the argument on that point: I am just saying that there are problems with retrospection, if that is what is intended.
Liberty says that the provision raises the possibility of the order being applied for at any time and thinks it more appropriate for there to be a window of time, particularly when a licence is coming under review. That is the time for the orders to be applied for, if they are going to be in place at all. There should not be an open-ended approach, meaning that they could be applied for at any time.
Liberty also says that the danger with the orders lies in a risk assessment taking place that identifies someone as being a “risk of serious harm”, without needing to identify a particular person or persons that they are a risk to. That is where the non-molestation orders would come into play, because they would specify the individual. However, the provision becomes too broad, in Liberty’s view, when it relates to risk to the public.
I have mentioned Liberty’s main points as succinctly as I can. There are questions on this set of clauses for the Under-Secretary to respond to.

David Burrowes: I shall also speak to clause stand part. I endorse the comments of the hon. Member for Leyton and Wanstead, particularly in relation to seeking vainly, on one hand, to restrict the breadth of the order, while on the other hand—although a particular amendment was not selected—seeking to remove it completely from the Bill. On both those counts, I endorse his approach.
On 20 April 2006, the then Home Secretary indicated that there was a strong case for the introduction of violent offender orders along the same lines that have proved effective for sex offenders. The issue is primarily whether that strong case exists. Certainly, a long and extended family of civil orders is being built up, whether they be banning orders, ASBOs, sex offender prevention orders, foreign travel orders, risk of sexual harm orders or control orders. Indeed, it may be more appropriate to follow the title of the Home Office review with a rebalancing the criminal justice system in favour of the law-abiding majority order. Perhaps that would be the best way of grouping everything.
The key question is whether the provision is needed. The hon. Members for Leyton and Wanstead and for Somerton and Frome, made the point that there are public protection offences on the statute book: the Criminal Justice Act 2003, the non-molestation orders in the Family Law Act 1996 and the Domestic Violence, Crime and Victims Act 2004 all contain elements of public protection.
Many respondents to the Government’s review were sceptical about the need to legislate, but how do the Government aim to deal with the perceived problem? Their response appears to be inconsistent. On the one hand, they say that there remain gaps into which some offenders may fall. The Government say:
“For example, some may have been convicted of a schedule 15 offence before April 2005 and therefore not eligible for the public protection sentences. Others may not have been assessed as sufficiently dangerous at conviction, but their risk has increased since that time.”
I therefore invite the Minister to state clearly how many people fall into the gap that needs to be plugged. The indication is that as a result of the provision, there would be some 100 orders each year. Of those 100 in the gap, how many would not have been party to the conviction rate before April 2005?
Further on, the Government’s response suggests that there is a gap in public protection sentences. It talks the language of a sentence—indeed, of a punitive sanction and a criminal sentence. However, further on, it makes it clear that
“a Violent Offender Order is not a punishment but a civil preventative measure.”
It continues:
“The VOO is not imposed as an additional punishment for a Schedule 15 offence,”
despite the Government saying that they needed to plug the gap in public protection sentences. Even at the early stage of their response to the public consultation, there appears to be inconsistency about the nature of the order, which perhaps is inherent when one seeks to bring in a civil order in a quasi-criminal manner.
The clause mirrors other civil orders. Indeed, one could enter the debate during the passage of the Serious Crime Act 2007 into the record, sit down and carry on. That would be an easy but perhaps too brief way of doing it, and we would not go to the depths and lengths to which my hon. Friends, with great consideration, dealt with that Act.
I highlight three points. The hon. Member for Leyton and Wanstead made the point about the order applying at any time. The concern is that the order will be applied for, not at the conclusion of the sentence, when it has had its true effect, in order to determine whether there is a continuing public risk at the appropriate time, but at any time. The court will be able to determine the issue before the sentence has had an effect, which suggests that the violent offender order will at best add unnecessarily to a criminal sanction, and at worse circumvent and undermine the criminal justice process. That process is the crucial part of the order, and the one that raises most concerns.
The Minister will no doubt want to emphasise time and again that the provision is preventive not punitive, but subsection 1(a) states that the order
“contains such prohibitions, restrictions or conditions as the court making the order considers necessary.”
The conditions and examples of those prohibitions, restrictions or requirements were made explicit in the 2007 Act, so will the Minister explain why they are not made explicit in the violent offender order aspect of this Bill? Those requirements could affect an individual’s working arrangements, communication and association with others, access to and use of certain premises, travel, financial property, and business dealings or holdings. The liberty of such an offender could be circumscribed.
I do not want to go into too much detail about the preventive and punitive elements of the debate, but perhaps the orders could be made in line with community orders, which can contain preventive and punitive elements, but which are nevertheless dealt with in the criminal courts and with appropriate burdens of proof. No doubt we will return to that matter during our discussions on amendments Nos. 364 and 365 when we can debate the appropriate burden of proof—whether it is a civil or criminal burden.
Key to the process are the length of orders, which have no time limit that could be renewed indefinitely, and the resources needed to make such an order effective. It has been indicated that the police will be responsible for applying for, monitoring and enforcing an order. That will place a burden upon the police’s existing activities. Will the Minister confirm whether existing resources will be made available to deal with the effectiveness of such orders?
The bottom line is that there is no convincing evidence that the orders are necessary. Certainly some violent offenders are prevalent after sentencing and the public need protecting from them. However, the focus should be on ensuring that the criminal sanctions and sentences are effective and that the public are fully protected, rather than on establishing new legislative processes that blur the distinctions between the civil and criminal fields and between fundamental rights.

David Heath: I shall be brief because the hon. Members for Leyton and Wanstead and for Enfield, Southgate have covered most of the points that I wished to raise.
Liberal Democrat Members have had long-term anxieties about the proliferation of injunctions against future offending. This is just the latest example of the way in which increasingly the Government see such injunctions as a means of reducing offending without having recourse to the criminal courts. It is hard to see their justification, because other measures are available. I repeat my request to the Minister concerning new clause 52, which was not selected for debate, but it is relevant to the clause stand part debate because it would provide an alternative way in which to address a problem identified—presumably—by the Government. However, it would do so by using existing laws and by extending provisions that are already on the statute book, and without increasing—yet again—the number of effectively non-criminal sanctions available for dealing with criminal behaviour, which is what most concerns us. Has the Minister considered that option, or indeed any other options? What is the distinctive nature of the new orders that makes them preferable to alternative disposals, available through existing practice or the courts, when dealing with those who break the law? What is wrong with the old-fashioned method of indicting them and letting a jury and a court determine the correct disposal?

Vernon Coaker: I thank the Committee for continuing with the constructive way in which it deliberated the Bill this morning. From the start, I accept that there is a difference between the Government and the hon. Members for Somerton and Frome and for Enfield, Southgate. I do not try to minimise it. All I want to do is to put the Government’s case and the alternative point of view in respect of the use of civil orders. I preface my comments with that because there is a very real difference—I understand that—but it is important to make the case again for the use of civil orders, notwithstanding the difference between us.
If we consider the use of civil orders—antisocial behaviour orders are the ones most often referred to—I think that generally speaking they have been successful. In fact, the cry about the use of civil orders in my and other people’s constituencies is not that we should not have them because they are civil orders but that they want more of them. They do not argue about whether antisocial behaviour orders are civil or criminal orders. They just see them as a useful way to control antisocial behaviour.
Similarly, football banning orders have been hugely successful in controlling behaviour, and they are civil orders. Sexual offences prevention orders—again, very successful—control sex offenders. Civil orders make a real difference to preventing harm in our communities and, therefore, to protecting the public.
The hon. Member for Enfield, Southgate mentioned again the debate that we had on the Serious Crime Act 2007. If people read it, they will find that it, too, involved a clash of views, opinions and deeply held beliefs. None the less, views and opinions were logically argued and, in the end, tested with a vote. People disagreed. The serious crime prevention orders that were passed during that Bill are another example of a civil order that we think will prevent crime.
The hon. Gentleman says, “The Minister will no doubt say that the orders are not punishments for past offences but preventive measures.” Of course that is the case that I will make. We are not saying that somebody who is a qualifying offender should be punished again for an offence that they committed. We are saying that if the chief police officer thinks that by going to the court he can prevent harm that may occur in the future, either to an individual—I shall come to the points made by my hon. Friend the Member for Leyton and Wanstead and the hon. Member for Somerton and Frome—or to the public, making this measure available to the courts, where there is a right of appeal, will be of benefit to the community.
In answer to the hon. Member for Enfield, Southgate, we expect about 100 such orders a year. We are not sure exactly what the breakdown of the orders is, but that is our best estimate at present.

Edward Garnier: Subsection (3) sets out the specified offences: manslaughter, offences under the Offences against the Person Act 1861, wounding with intent to cause grievous bodily harm, malicious wounding and attempted murder. If the Minister does not think that those offences either under common law or under statute are not sufficient to prevent people from committing those crimes, why does he think that the imposition of a violent offender order will have any more effect?

Vernon Coaker: The argument is that the specified offences laid out in subsection (3) are the offences for the purposes of the order. People will have been punished for those offences through the criminal justice system. They will have been given prison sentences and perhaps allowed out on licence at the end of their prison sentences, depending on what happened. To qualify, the offender must have committed one of the specified offences, but this is not about punishing those offenders. Of course, it is about deterring people from committing such crimes, but the orders are for people who, in the eyes of the court, still pose a risk to others when the various punishments that they have been given for committing those offences have finished. The hon. and learned Gentleman will know that violent offender orders cannot be enforced while offenders are subject to a punishment imposed by a court. I reiterate that these offenders will already have been punished for committing a specified offence; the measures are about preventing future harm.

Edward Garnier: It is probably entirely my fault, but I do not think that the Minister quite understood my question. Let us assume, as we must, that the specified offender has committed a specified offence in the past. On that basis, he is brought within the remit of the violent offender order system, and the court, if it is satisfied that it should do so, can impose certain restrictions on his movement and with whom he may associate. If he is sufficiently careless or mindless of the law, or knowledgeable about the law and prepared to breach it, to the extent that he will commit a specified offence, and has in the past, why do the Government think that he will pay the slightest attention to a violent offender order that seeks to prevent him from going to a particular address or associating with certain people?
If someone is minded to commit one of the serious offences in subsection (3), he will not be bothered by a violent offender order. The Government will fill our prisons with people who have breached these orders, as has happened with ASBOs. A great many people have been sent to prison for up to five years for breaching ASBOs, not because they fall under the categories in subsection (3), but because they are mentally ill, alcoholics or substance abusers. Such people have social or other issues that need to be dealt with, but not necessarily by a term of imprisonment. That is a different issue, but the same principle applies.

Vernon Coaker: I did understand the hon. and learned Gentleman’s point, and apologise if I did not answer it particularly well. I thought that I was explaining that the court would make a judgment on whether making someone who has been found guilty of a specified offence subject to an order under subsection (1) would prevent future harm and protect the public. That is why we have made the breach of such an order a criminal offence. If someone breaches a violent offender order, they could be subject to a term of imprisonment of up to five years.
I suggest that whether or not someone has been found guilty of a specified offence, if a court told them that they could not associate with certain people or go to a certain place because the court believed that they might cause harm to an individual or others, they would take note of that order if they were threatened with imprisonment if they did not. I take the hon. and learned Gentleman’s point about filling up the prisons, however. We think that a small number—about 100 people—might breach orders and be subject to a term of imprisonment, but that is a price worth paying to protect the public from certain individuals.
On the point made by my hon. Friend the Member for Leyton and Wanstead, the conditions linked to a violent offender order will always be linked with the specific risk posed by the individual. They will be a matter for the courts to determine, and of course they will need to be proportionate as the court will have to act in a way that is consistent with the Human Rights Act. The procedure will be exactly the same as that which operates for a whole range of other civil orders that the Government have introduced, whether antisocial behaviour orders or others.
The problem with just using non-molestation orders instead of violent offender orders would be that they can be used only to protect named individuals or individuals known to the person in question. Non-molestation orders may therefore not be able to protect individuals not known to the person subject to the order. Of course, non-molestation orders do not apply to the public. A person who is made the subject of a violent offender order will be someone who is believed to be a danger to the public. In that respect, a non-molestation order would not be appropriate and could not be used. I loved what my hon. Friend the Member for Leyton and Wanstead said—it was a bit of a radical proposal. I think that it was the nuclear option. He wanted the whole of part 8 struck out of the Bill.
Violent offender orders are intended to build on and complement other public protection measures, including determinate extended and indeterminate sentences, which were introduced in the Criminal Justice Act 2003. Whereas those measures are applied at the point of sentencing, the principal aim of the violent offender order is to protect the public from the most dangerous violent offenders who still present a risk of serious, violent harm at the end of their sentences, when there is no other risk management mechanism in place. We are introducing the orders to manage the risk of the most serious violent offenders, who fall into three main categories: individuals who were sentenced for a serious violent offence prior to the introduction of public protection measures in April 2005; individuals whose risk level was not considered high enough to warrant an indeterminate or extended sentence at the point of conviction, but who are now deemed to be at risk of causing serious violent harm, and individuals whose determinate extended or indeterminate sentences for a qualifying offence has expired but whose behaviour has come to the attention of the police as being high-risk. By closing those current gaps in supervision, violent offender orders will be an essential risk management tool in addition to existing public protection measures.

David Burrowes: The Minister refers to gaps in supervision. Is it not true that the genesis of the violent offender order was the tragic John Monckton case, which caused great concern across the House and among the general public? The response to that was the initiative of the order. Is not the gap in supervision the result of a gap not in legislation but in the resources going to the probation service to enable the proper face-to-face supervision that the public and victims should ordinarily get through a sentence imposed by a court? Should not the focus be on proper supervision, licence provision and the like in sentencing, rather than on extra legislation?

Vernon Coaker: I have tried to make the point that violent offender orders are supposed to be used where there is no other supervisory arrangement available. They are to fill that gap——for when somebody has finished their sentence, licence conditions are over and there is nothing else left with which to supervise or look after somebody. There will be a violent offender order when a chief police officer believes that an individual poses a risk, and takes the matter to the court. It will be when everything else has finished and there is nothing else left. There may be some people who are convicted offenders, who have committed specific offences and who have acted in a way that suggests that they may pose a danger to other individuals or to the public. This provision fills that gap and that is why we have introduced these violent offender orders.

David Burrowes: I hear the point that it is about when supervision has ended, but is not the issue less about the fact that the supervision period has ended than that the quality of supervision is lacking? We need to look at how, within the time available, we can have higher-quality and properly carried out supervision. That brings us back to the Monckton case where that supervision was identified as lacking. We need to deal with that gap, rather than saying that the time has ended for licensed supervision, and moving on to another order.

Vernon Coaker: That is a reasonable point—we must ensure that any supervisory arrangements that are in place for somebody who poses a risk are of high quality. It is a fair point, and one that we are all determined to improve on. However, when the period of licensed supervision is over, there is a gap. Therefore, whatever the quality of supervision—and one would hope that it would be such that in future there will be fewer people who pose a risk when it is finished—there still may be a problem with some individuals. The violent offender order is designed to fill that gap. I take the hon. Gentleman’s point, but it does not mean that violent offender orders are not necessary in any circumstances.
We have consulted a wide range of stakeholders in drafting the provisions and violent offender orders have received broad support. They are intended to protect the general public, or any particular member of the public, from the risk of serious physical or psychological harm caused by an individual committing one or more specified serious offences. The orders will be made on the basis of an up-to-date assessment of risk at the end of an individual’s sentence. Violent offender orders will enable the court to impose negative requirements, such as prohibitions, restrictions or conditions. The conditions of an order will be determined on the basis of risk, and imposed only when a court is satisfied that they are necessary to manage the behaviour of an individual in order to protect the public from the risk of serious violent harm. A violent offender order will be effective for at least two years, unless it is deemed appropriate to renew or discharge it before this time.
I repeat that I do not believe that non-molestation orders are an adequate substitute for violent offender orders. Non-molestation orders can be made by courts to protect an individual from molestation by a known person. That person must essentially be within the family sphere. The individual requiring protection will always be connected to the offender, for example a current or former spouse, cohabitant or relative child. The key point is that non-molestation orders must be used specifically to protect named persons. Currently, they can only be only be applied for by the person that is at risk of harm or on their behalf by a person who is associated with the offender. My hon. Friend the Member for Leyton and Wanstead suggests that a chief police officer should be able to apply to court for a non-molestation order for the benefit of an individual. There are undoubtedly wider benefits to such an amendment, particularly as it would mean that additional protection could be granted to individuals who are either unwilling or unable to apply for a non-molestation order themselves—for example, when an individual is too afraid to apply for an order.
I say to my hon. Friend the Member for Leyton and Wanstead and the hon. Member for Somerton and Frome that while the non-molestation order is not something that could be used instead of a violent offender order, the point made by the hon. Member for Somerton and Frome about others being able to apply for non-molestation orders is an idea that could be explored further. It is an extremely valid point and something that I am willing to look at to see how it could be taken forward.
The purpose of the violent offender order is to provide a means of continuously protecting the public from the most dangerous violent offenders who still present a high risk at the end of their sentence. It would be used when there are no other means for public protection authorities to manage that risk.

David Burrowes: The Minister says that breaches of the order would lead to some 20 additional prison places being required, but the National Association of Probation Officers estimates that around 3,000 additional places will be required in any one year. There is a big difference between 20 and 3,000, so is not an independent assessment of the provisions necessary to clarify accurately the potential increase in the prison population to provide confidence that there is capacity to deal with violent offender orders? The point also relates generally to other parts of the Bill.

Vernon Coaker: There is a huge discrepancy, as the hon. Gentleman said. We used the template of sexual offences prevention orders to guide us, and we made the best estimate. The idea is not for someone to breach the orders. They are preventive orders and I do not believe that many people will breach them, but we must have a sanction. We have used our best estimate and other civil orders to guide us. We estimate that 100 such orders might be made, requiring approximately 20 prison places. We will continue to keep the matter under review.
I have told my hon. Friend the Member for Leyton and Wanstead and the hon. Member for Somerton and Frome that I want to look at the idea of who can apply for non-molestation orders, and I hope that my hon. Friend will withdraw his amendment.

Harry Cohen: Notwithstanding the nuclear nature of one of the amendments, they are probing amendments, and provided an opportunity to discuss violent offender orders and their implications. I am grateful to the Minister for his explanation. I am also grateful to the Minister for agreeing to explore the possibility of extending non-molestation orders and who can apply for them. I am pleased that he picked up that point. I noted that the Minister said that the provisions of the order imposed will be specific and proportionate. That will fall to the authorities, and it is important that they take that on board.

Vernon Coaker: Obviously, we intend to issue guidance on clause 83(1)(a), and it will make it clear that the orders must be proportionate. My other point is that the courts must act in a way that is consistent with human rights legislation.

Harry Cohen: I appreciate that as well. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Motion made, and Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 9, Noes 7.

Question accordingly agreed to.

Clause 83 ordered to stand part of the Bill.

Clause 84

Qualifying offenders

David Heath: I beg to move amendment No. 352, in clause 84, page 57, line 39, after ‘person’, insert ‘aged 18 years or above’.

Edward O'Hara: With this it will be convenient to take Government amendments Nos. 212 and 239, and Government new clause 37—Review of violent offender orders in respect of young offenders .

David Heath: We are back to the issue of how we apply the various criminal sanctions to those who are under 18, as opposed to those who are 18 and over, and whether a difference should apply now. I feel that perhaps I am pushing a slightly open door because I have looked carefully at the Government’s amendments, which spend 50 or 60 lines moving in the direction of my simple amendment consisting of five words. Perhaps there is an element of doubt in the mind of the Minister as to whether it is appropriate to apply violent offender orders to those who are under 18 at the time of the implementation of the order. I emphasise that point because there will be some young people who have served a sentence for a violent offence, who would be subject to a qualifying offence but will have passed their 18th birthday by the time they can receive an order. I will state very quickly why it would be sensible to make the limitation.
The first point is the general case, which we have explored several times in the Committee, that there should be a different penal system for young people from that which applies to adults. The second point is about the number of people who are under 18 to whom violent offender orders would apply. In a moment I will ask the Minister to justify the existence of these orders, particularly with the further restrictions that he is proposing through the amendments, but I am advised by the Standing Committee for Youth Justice, which has done some work on this regarding criminal statistics, that well under 1,000 young people commit a range of offences that are eligible for VOOs. Of those, only a few dozen receive a qualifying sentence—one of 12 months or more. Of those few dozen, very few will not be over 18 by the time they are released, so the measure will apply to very few individuals, unless we get the sort of inflation that there has been in the world of ASBOs. It is a shame that the right hon. Member for Cardiff, South and Penarth is not with us because he would have a lot to tell us about ASBOs and how they were never intended to apply to young people. Perhaps that is why he has been allowed a leave of absence for this afternoon’s sitting; the fact that he is unavailable to make that speech has reduced our proceedings considerably. I will presume to make the point for him, as it is one that he has made forcefully on a number of occasions.
The next point is whether a violent offender order is likely to be either appropriate or effective in the case of a young person. I accept that within the orders there are positives as well as prohibitions, and therefore there are some aspects that could be seen as of value to a young person. Having said that, there are other ways of achieving those objectives without applying a violent offender order as a mechanism.
Finally, we already have a different way of managing young people on release if they represent a risk to others. We have reporting requirements that are more stringent for young people than for adults, and we have youth offending teams, which the Government always seem to forget until they bring back a proposal and then are reminded that such teams exist—perhaps they should listen to what they have to say in respect of young people. Such teams were the invention of this Government and their role is to assess the risk of serious harm and to develop a risk management plan. That is exactly the area in which the violent offender orders are intended to work. If the risk is really serious, we are talking about multi-agency public protection arrangements as well. They are a much more stringent regime than anything that a violent offender order is likely to offer.
Whatever the justification for violent offender orders in respect of adults, it is thus hard to substantiate a case for applying them to a person under the age of 18. It is hard to read the Government’s amendments without forming the view that they have reached the same conclusion. New clause 37 sets out a long list of requirements for under-18s. Government amendment No. 212 will introduce the need to consult youth offending teams. Quite honestly, if all the Government amendments are necessary, would it not be better to say that the violent offender order does not apply to young people and that we use the youth offending teams and multi-agency public protection arrangements in the case of more serious risk? In other cases we use the apparatus that the Government have put in place, which has not been deficient in this specific area and which will do the job extremely well. I look forward to hearing the Minister’s convoluted way of justifying something that is very hard to justify.

David Burrowes: I endorse many of the comments made by the hon. Member for Somerton and Frome. The convoluted way in which the Government have sought to deal with young offenders might be a response to the amendment that he tabled. It also illustrates the problems inherent within the violent offender orders. The more they try to deal with offenders who need special consideration, the more one sees that they have problems. That seems to be highlighted by the new clause and the way in which it will deal with those who are under 18, and those who are under 17 when the orders are made, and the complications that arise. I will be interested to hear the Minister’s response to amendment No. 352 and his justification for the new clause. Although it might improve the situation, it could raise more questions than answers about the need for offender orders in the first place.

Vernon Coaker: Just because ideas are proposed by other hon. Members, it does not mean that I will reject them—that is one of the things that I try to bring to Committees. There are issues about under-18s that need to be considered. I do not believe that anyone here wants to criminalise young people. In fact, in our earlier proceedings, my right hon. Friend the Minister of State spent a considerable amount of time debating that whole issue. Without digressing too far, because I will speak to the amendments about the application of violent offender orders to under-18s, we need to consider how we deal with young offenders. There is a real dilemma here. The Government have introduced all sorts of measures to try to ensure that we keep young people out of prison—or out of the criminal justice system—as far as we can. When addressing the small number of people who may cause a problem—I shall mention the numbers in a minute—it is incumbent on us to ensure that we protect communities. That is something to reflect on.
I shall put this thought into the minds of Committee members, including the hon. Members for Enfield, Southgate and for Somerton and Frome: there are some quite dangerous, violent young people under 18—I am not saying that hon. Members would disagree with that—and many of their victims are not 70-year-old pensioners, although that is what people believe from reading the newspapers, but other young people who are under 18. That is a huge dilemma. That is part of what this discussion and debate are about. Although we do not want to criminalise young people and make them subject to violent offender orders, it is because of our desire not to do so that we need to ensure that we have in place processes, procedures, a criminal justice system, and other civil orders, that protect other young people.
There is a difficult balance to strike and this is a difficult debate. I do not for one moment suggest that either of the hon. Gentlemen who have spoken want to put other young people in danger, but there is tension and difficulty here. Although we do not want many young people to be subject to violent offender orders, our view is that, for a very small number, those orders should be available to the courts.
To give a specific answer to the question that the hon. Member for Somerton and Frome asked, we estimate that the number is 20. That estimate in respect of such people for whom violent offender orders may be appropriate came from the Youth Justice Board, which also advised us that the figure could be less than 20. I hope that that answers the hon. Gentleman’s specific point about the numbers.
On the amendment tabled by the hon. Members for Somerton and Frome and for Cambridge—and, indeed, the Government amendments—we have considered in detail whether violent offender orders should apply to young people. That matter was specifically raised as part of the Government’s consultation on the orders earlier this year. This is a difficult issue that none of us likes to contemplate. The Committee will be aware that the primary aim of violent offender orders is to protect the public from the most serious violent offenders, a small number of whom, unfortunately, will inevitably be under 18. We therefore believe that violent offender orders must apply to both adults and young people.
More than 70 per cent. of respondents to the consultation, including the Crown Prosecution Service, the Association of Chief Police Officers, the Police Federation, Her Majesty’s inspectorate of probation and the Association of District Judges, agreed that violent offender orders should be applied to young people in some way. We have no wish to apply new interventions such as violent offender orders to young people without due thought and consideration about their appropriateness. Because of that, and in recognition of the dynamic nature of risk and risk management in respect of young people, we have been working closely with the Youth Justice Board to develop the appropriate, effective procedures and practices for the application of violent offender orders to young people that are set out in the Government amendments. We are trying to reflect some of the issues that the hon. Member for Somerton and Frome has raised. The provisions will not go as far as he wants, but they will hopefully include some safeguards.
Government amendment No. 212 will require the chief police officer to consult a member of a youth offending team prior to making an application for a violent offender order in respect of an individual under 18 to ensure that an order is necessary and appropriate. A youth offending team would already have been managing the young person following their serious offence and throughout their time in custody. That team’s advice on whether an order would be necessary or appropriate would be based on its extensive knowledge of the individual, including their offending history, family, accommodation, education, health, and needs with regard to substance misuse. It will also know what work has gone on with the young person to tackle their violent behaviour during the course of their sentence. It is important that all that information is taken into account when deciding whether to apply for a violent offender order for a young person.
Government amendment No. 239 will amend section 38 of the Crime and Disorder Act 1998 to enable youth offending teams to provide support to individuals below the age of 18 who are subject to such an order or interim order. Section 38(1) of the Act places a statutory duty on local authorities to make specified youth justice services available in the local area. The amendment adds to that list of specified youth justice services and requires the youth offending team to co-ordinate the provision of support for children and young people subject to an order or interim order.
I have already explained how a youth offending team manages a young person following their serious offence and throughout their time in custody, and how it will have built up an extensive knowledge of that young person. Inevitably there will be instances when a young person refuses that support. We cannot, of course, compel a young person to accept an offer of support, but none the less we feel that it should be made available in all cases.
We are currently working with the Youth Justice Board to consider the types of support packages that could be offered to individuals.

Sally Keeble: Will my hon. Friend tell us what attention is being paid to ensuring that the youth offending teams are adequately staffed? Some have mentioned the considerable pressures in dealing with their current work loads. How will that work in practice?

Vernon Coaker: We are talking to the Youth Justice Board about how to ensure that those subject to violent offender orders can be properly managed by the youth offending teams using the resources available to them. We do not think that that will involve a huge number of young people, but I take the point that many of them will be quite resource intensive. We are discussing that with the board, however, to ensure that adequate resources are available.
Finally, new clause 37 introduces mandatory annual reviews of violent offender orders for individuals below the age of 17, which will help to ensure that orders made in respect of young people apply only for as long as the risk posed by them is assessed as sufficiently high to warrant it. That mirrors annual reviews for antisocial behaviour orders for individuals below the age of 18, which are being introduced by this Bill. A review will take place every 12 months after a violent offender order, or interim violent offender order, has been made, or was last varied or renewed, provided that the young person is still under 18.
I take to heart the points made about under-18s. We do not want them made subject to violent offender orders, but believe that that will be appropriate for a small number. We have tried, through the Government amendments, to take into account the concerns of people such as the hon. Members for Somerton and Frome and for Enfield, Southgate. We have tried to introduce into the Bill various safeguards that we hope go some way towards meeting those concerns while also ensuring that we do what we can to protect the public. With those remarks, I hope that the hon. Member for Somerton and Frome will withdraw the amendment.

David Heath: It is difficult to pick a fight with the Minister. He presents himself extremely reasonably. I think that the Government amendments are a clear admission of the fact that the provision is unnecessary and that other routes are available. The case is self-evident. Having said that, my amendment would change the terms of the orders—admittedly in a very longwinded and complex way—and address a lot of my points. I shall reflect on whether there are circumstances for the fewer than 20 young people—so we are told—in which the violent offender order takes us any further than the existing reporting structures, risk assessments and the rest of the panoply associated with a youth offending team’s management of a case and the MAPPA restrictions. If it is clear that the order makes a significant difference to even a few, I shall not return to the issue on Report.
I shall reconsider the issue, and reconsider very carefully the amendments, which I shall not oppose, because they represent movement in the right direction. However, if I feel that the case has still not been made, I shall return to the matter because I feel very strongly that we must be very careful indeed when applying yet more criminal law to young people—even when they are pretty horrible young people who commit serious offences and from whom the public need protection. Having said that, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 84 ordered to stand part of the Bill.

Clause 85

Applications for violent offender orders

Amendment made: No. 212, in clause 85, page 59, line 13, at end insert—
‘(3A) Before making an application under this section in respect of a person who will be under 18 at the time of the application, the applicant must consult any member of a team established under section 39 of the Crime and Disorder Act 1998 (c. 37) (youth offending teams).’.—[Mr. Coaker.]

Question proposed, That the clause, as amended, stand part of the Bill.

David Burrowes: The Justices’ Clerks Society has made a point about violent offender order applications and the police being the office holders who make the complaint to the magistrates court. I asked whether it would be more appropriate for the Crown Prosecution Service, which is independent of the investigation, to make the complaint, and that is my question to the Minister.

Vernon Coaker: We have used the procedures and processes for antisocial behaviour orders because we feel that they are appropriate for the violent offender orders. The chief police officer is the best person to make the judgment, because their liaison with all the statutory agencies will be greater than that of the Crown Prosecution Service. In that sense, the chief of police will be the most appropriate individual.

Question put and agreed to.

Clause 85, as amended, ordered to stand part of the Bill.

Clause 86

Making of violent offender orders

David Burrowes: I beg to move amendment No. 364, in clause 86, page 59, line 29, after ‘satisfied’, insert ‘beyond reasonable doubt’.

Edward O'Hara: With this it will be convenient to discuss amendment No. 365, in clause 88, page 61, line 8, after ‘satisfied’, insert ‘beyond reasonable doubt’.

David Burrowes: The amendments raise an issue that has been debated before on the Floor of the House and in Committee at some length. I do not propose to take all that long—I shall highlight the salient and significant issues that we must consider. No doubt the other place will want to consider them in some depth.
Amendments Nos. 364 and 365 deal with the burden of proof to secure a violent offender order and an interim violent offender order. The amendments raise the problem of the burden of proof of a civil order.

Vernon Coaker: Standard of proof.

David Burrowes: Standard of proof, sorry. I am grateful for that intervention.

Vernon Coaker: I am always pleased to help with legal phraseology.

David Burrowes: The Minister is using again the joke that he made during the passage of the Serious Crime Act 2007. No doubt he will want to use it again as we examine the legal niceties of the standard of proof.
To try to help the Minister curtail his response, I can tell him that I know that he will say that it is unnecessary to state explicitly in the Bill that the standard of proof should be “beyond reasonable doubt”, and that there is a sliding scale of burden of proof dependent on facts and criminality. We might well wish to consider the case of McCann, in which consideration was given to the burden of proof in relation to antisocial behaviour orders, because it is relevant.
It is important to incorporate in legislation the required standard of proof. We need to clarify that burden so that, when lawyers and others come to practise it and courts consider making an order, they know clearly where the House is coming from. That is important for a number of reasons. Violent offender orders will have a significant impact on individuals’ liberty, not least when one considers the penalties available for a breach of the order: in a magistrates court, a 12-month sentence of imprisonment or the statutory maximum fine; or, on indictment in the Crown court, a maximum of five years, a fine, or both.
We must consider whether there is a need to state the proof needed in the Bill, or whether we can leave the matter to a sliding scale that will be subject to various vagaries. The concern is the time available for the order. It is a minimum of two years. How long will an order last? One sees that it will be renewable indefinitely. That must lead us to be cautious about going down the route of civil law by way of a quasi-criminal remedy.
There is concern that the courts might seek to use the balance of probabilities as their level of proof. They might consider whether it is more likely than not that it is necessary to protect the public from the risk of serious violent harm. That is important, because the definition of the purposes of the order in clause 83(2) is wide. We need as much clarity in the Bill as possible. No new offence may be committed after the appropriate date, and we need greater clarity, given the consequences of any breach.
When delivering the McCann judgment on the standard of proof upon which both sides of the argument may wish to rely, Lord Steyn said:
“in my view pragmatism dictates that the task of magistrates should be made more straightforward by ruling that they must in all cases under section 1 apply the criminal standard.”
That was section 1 of the Crime and Disorder Act 1998, under which ASBOs can be made. That was echoed by others, notably Lord Hope, who said:
“I would hold that the standard of proof that ought to be applied in these cases to allegations about the defendant’s conduct is the criminal standard.”
We need properly to recognise those judgments, not least because of the seriousness of violent offender orders. There are significant restrictions that are not necessarily explicit in the Bill, but will have an impact on an individual’s liberty. It is important to reflect that properly and to achieve clarity, not only because of the seriousness of the orders and the impact of a civil order being a quasi-criminal remedy, but because of the general way in which the Bill deals with assessments.
Liberty has registered its concern about the process leading to the making of an order. An order will be made following an assessment by a court of whether the risk posed by an offender justifies an order to protect the public. Liberty argues that it will be based primarily on a psychological evaluation, rather than on proof of particular behaviour. The concern is that there should be greater clarity regarding the standard of proof. Given the seriousness of the order and its impact on the individual, that should properly be done by following the McCann judgment in the Bill and having a standard of “beyond reasonable doubt”, which the amendment would achieve.

David Heath: I entirely associate myself with the comments of the hon. Member for Enfield, Southgate on amendment No. 364. We should have an appropriate burden of proof for the orders, which are effectively taking the place of criminal proceedings in a preventive way. They are something akin to a criminal injunction. The insertion of the words “beyond reasonable doubt” after “satisfied” would mean that the court would have to take proper cognisance of the evidence of propensity because that would be nothing more than propensity—there would be no evidence of wrongdoing, other than previous behaviour. As the courts are being asked to determine propensity, the condition needs to be in place.
I have more problems with amendment No. 365, which I should like to examine for a moment, if I may. Please advise me, Mr. O’Hara, if I stray too far into matters that should be discussed in the stand part debate on clause 88.

Edward O'Hara: Order. Should that happen, I shall rule that we should move formally to the clause stand part debate. Do not feel constrained.

David Heath: I am most grateful, because it is quite difficult to dissociate the two issues. Amendment No. 365 would also insert the words “beyond reasonable doubt” into a clause. The consequence of that change would be that a court would have to be satisfied beyond reasonable doubt that a person to whom an application related was a qualifying offender, but that is rather simple to establish beyond reasonable doubt. Given that the qualification is simply whether they have previously been convicted of a qualifying offence, it is almost a redundant issue. However, I understand the intention behind the amendment.
It worries me that the more one looks at clause 88, the more one realises that interim violent offender orders are not even to be based on any proof of propensity, as far as the courts are concerned, let alone an actual offence having been committed. Applications are to be made purely on the basis of previous convictions, and the court is asked simply to consider whether it is just to grant an order. It is interesting to consider under what circumstances a court would consider it just to do so, in the absence of any other consideration.
So, the court is asked to do two things: to establish whether the relevant person is a qualifying offender, and whether it is just to grant an interim order. I am concerned that although the interim orders have effect for
“not more than 4 weeks”,
they may be renewed on “one or more occasions”. So, in the absence of a substantive order being made, there could be a running interim order, which could produce the same effects as a full order, being renewed over several weeks, months or even years if the courts were so minded, although I do not believe that they would be.
My reason for putting the matter forward is because, although I entirely supported the initial premise of the hon. Member for Enfield, the more that I see how it would be applied to clause 88, the more I feel that there is something more inherently wrong with the interim violent offender order clause, even above and beyond what we have already debated in respect of the general violent offender orders. It is hard to see how the court will assess the justice provision within the clause in a way that is consistent with justice.

Edward Garnier: This is a genuine unprovoked intervention, not least because my hon. Friend the Member for Enfield, Southgate dealt fully with the issue. However, the matters raised by the hon. Member for Somerton and Frome lead me to mention again the concerns that I expressed about another aspect of the Bill. We are considering interim injunctions. The applicant says to the court, “While we get our evidence completely in order—and we have material to satisfy the court that this man will, unless he is constrained by various conditions, probably do the following—will you please freeze the position?”
It would be interesting to find out from the Minister whether the interim orders can be made only on an inter partes basis with both the complaint and respondent present or whether they can be made on an ex parte basis. There is probably a different way in which to describe the position when the applicant is there without the respondent. For an interim injunction, other than in defamation, the relevant expression that is used quite frequently is “the balance of convenience”. That could be where the balance of justice lies, but the Government must tell us what precisely they intend by the interim violent offender orders. Is it anticipated that they will be made on a continuous basis, allowing the Government without having foolproof—although reasonable—grounds on which to base their application? They should be made more or less on a rolling basis. Are they limited to a certain number?

David Burrowes: No, it is an open chain.

Edward Garnier: There we are; the position gets worse and worse. I am amazed that we do not have interim nuclear facilities orders or interim prostitution orders. I think that I have made my point. We need to be sure what the Government want to do. If they are making a genuine attempt to prevent something from getting worse while evidence is being brought to court, that is understandable, although not very attractive. The combined arguments of my hon. Friend the Member for Enfield, Southgate and the hon. Member for Somerton and Frome require careful responses from the Government and some rather better thinking than is evident from the Bill.

Vernon Coaker: The interim violent offender orders are designed to be available to the court as an emergency measure. Mr. O’Hara, I know that a later clause covers such matters but, given that I have been asked about such matters, perhaps it is appropriate if I make my response now.

Edward O'Hara: I shall declare my intention when we reach clause 88 stand part. That seems the best way in which to deal with a difficult situation.

Vernon Coaker: In answer to the hon. and learned Member for Harborough and the hon. Member for Somerton and Frome, our intention in respect of interim violent offender orders is for them to be available to the courts as an emergency measure. I shall come to the standard of proof in a moment, but it would be a matter for the courts to determine whether the orders should be renewed. The Government or the chief police officer would not renew them. We would assume therefore that although we can say, for the purposes of argument, that four weeks, four weeks, four weeks and so on would be possible, my view is that a court would not consider that appropriate or proportionate.

David Heath: I entirely accept that argument; my difficulty is with the question of the test that the clause requires the courts to apply, because it is by no means clear what test is to be applied to assess whether an interim order should be made. As far as a full order is concerned, there is at least clarity as to the matters to be taken into account and how that is to be done, although my party would prefer a strengthening of the provisions in that regard. Under clause 88, however, those matters do not apply.

Vernon Coaker: The test is whether, in the court’s view, an individual poses a serious risk to another person or to the public. The evidence to demonstrate that would have to be put before the court before an interim order could be made. The order is an emergency measure that would be available for the courts to impose temporarily while a full violent offender order was being applied for.
I respect the positions that have been set out by the hon. Members for Somerton and Frome and for Enfield, Southgate, but let me restate what I said about violent offender orders: there are clearly differences between us. That emerged in discussions about serious crime prevention orders during passage of the Serious Crime Act 2007, when there was disagreement about the standard of proof that should be applied. The Government considered that, as the orders should be civil orders, the relevant standard was the civil one, whereas the hon. Gentlemen thought that the standard should be the criminal test of reasonable doubt. The debate is similar this time.

David Heath: Let us set aside our differences over whether violent offender orders should be made at all. I would understand the Minister’s argument if the conditions set out in clause 85(2) both applied in relation to interim orders. That provision requires additionally that the person has
“since the appropriate date, acted in such a way as to give reasonable cause to believe that it is necessary for a violent offender order to be made in respect of the person.”
If that requirement applied to applications for an interim order, evidence would have to be presented for an interim order in the same way as for a full order, which is exactly what the Minister said, and I would understand that he was suggesting that the same test should be applied. However, the requirement is absent from clause 88, so I ask the Minister to explain to us why a different test should be applied, given what he has told us about the evidential test for the making of an interim order.

Vernon Coaker: The hon. Gentleman is right to point out that there is a difference, so I will reflect on his point in the spirit of my general approach to the Committee. His point might be important. I am not saying that I will agree with him, but I shall explain on Report whether a change is needed. However, I hope that he will forgive me for repeating that the whole point of interim violent offender orders is to put something in place quickly if the court considers that there is a possible serious risk to the public.

Edward Garnier: I am sorry to cut across my hon. Friend the Member for Enfield, Southgate, who has dealt with this point with great—

David Heath: Aplomb.

Edward Garnier: That will do very well, yes. The debate is throwing up quite a number of knotty problems that the Government need to be clear about before we put the clause to bed. The comparison between clauses 85 and 88 is worth exploring. In any event, we need to know whether the application for an order will be made orally, with the evidence also being oral and subject to cross-examination. Alternatively, will it be on the basis of statements? Is a police officer simply going to read from his notebook or will there be verified statements or sworn affidavits that are not susceptible to cross-examination?
In order to fulfil the conditions of clause 85(2)(b), it has to be shown that the person has
“acted in such a way as to give reasonable cause to believe that it is necessary for a violent offender order to be made in respect of that person.”
Will we therefore be looking for more than the fact that the designated offence has occurred? Clause 88 deals with interim violent offender orders, and subsection (3)(b) states that if the court
“considers it just to do so, the court may make an interim violent offender order in respect of the person containing such prohibitions, restrictions or conditions as the court considers necessary for the purpose of protecting the public from the risk of serious violent harm caused by that person.”
What is the material? Is it evidence that that person, since he has been released from prison, has done something that leads the applicant to suspect that he might do something and, therefore, needs to be prohibited from going from place A or talking to person B? Or is the evidence of a rather higher level, which clause 85(2)(b) seems to imply but is not clear about? Those differences need to be resolved with regard to the nature of the evidence and how it is presented to the court, which may or may not grant the violent offender order. Whether the respondent should know in advance that he is either going to be subjected to such an order or has a right to appear and argue against the evidence must also be considered.

Vernon Coaker: Clearly, we will put the guidance out to the courts in the normal way that they receive guidance on how to process all sorts of different procedures. With regard to evidence, my understanding is that one would not expect evidence in such matters to be oral. One would expect written evidence also to be made available to the courts so that judgments can be made with regard to it. We intend to ensure, through guidance, that many of the points that the hon. and learned Member for Harborough has made are covered.
On the standard of proof, as I said earlier to the hon. Member for Enfield, Southgate, we used the standard of proof argument that was used in the McCann judgment. We believe that that judgement, which was made in the House of Lords, is the appropriate one to use. Although it referred to antisocial behaviour orders, it was clearly stated that proceedings were civil under domestic law, that they complied with the European convention on human rights and that they were civil orders rather than criminal orders.
When it came to the actual standard of proof that was available, the hon. Member for Enfield, Southgate quoted from the judgments. The judgment stated:
“Lord Bingham of Cornhill has observed that the heightened civil standard and the criminal standard are virtually indistinguishable.”
I do not disagree with his view. Lord Hope said:
“it is not an invariable rule that the lower standard of proof must be applied in civil proceedings. I think that there are good reasons, in the interests of fairness, for applying the higher standard when allegations are made of criminal or quasi-criminal conduct which, if proved, would have serious consequences for the person against whom they are made.”
We went through that and said that the judgment that we use from the House of Lords with regard to civil orders, which we would expect to be applied to violent offender orders, demonstrates that there is a sliding scale and that a standard of proof virtually indistinguishable from the criminal standard should be the standard of proof that is used. I put that on the record with regard to violent offender orders, as I did with regard to serious crime prevention orders.

Edward Garnier: Is hearsay evidence admissible in such circumstances?

Vernon Coaker: Yes. Again, that was part of the McCann judgment, which stated:
“Having concluded that the proceedings...are civil”,
it follows that hearsay evidence is admissible
“under...the machinery of the Civil Evidence Act 1995 and the Magistrates’ Courts (Hearsay Evidence in Civil Proceedings) Rules 1999”.
The McCann judgment covers the situation. We would expect the way in which the McCann judgment laid out the standard of proof for civil proceedings to be used in respect of violent offender orders.
Amendments Nos. 364 and 365 both relate to the standard of proof required for court decisions on violent offender orders. Currently, before making a violent offender order, a magistrates court must be satisfied that the person is a qualifying offender and has, since conviction for the qualifying offence as set out in clause 83, acted in such a way as to make an order necessary for the protection of the public from the risk of serious violent harm. Amendment No. 364 requires that a magistrates court makes a violent offender order in respect of an individual only if satisfied beyond reasonable doubt that that is the case.
Amendment No. 365 makes the same change in the case of interim violent offender orders. Currently, before making an interim violent offender order, a magistrates court must be satisfied that the person to whom the main application relates is a qualifying offender, and must consider it just to grant an interim order while the main application is being determined.
We have had a considerable debate on the standard of proof. The hon. Member for Enfield, Southgate believes that we need a criminal standard in the Bill, but we do not wish to include one for what is a civil order. We believe that the McCann judgment sets out clearly that the standard of proof for violent offender orders should be virtually indistinguishable from the criminal standard.
With those remarks, and a reminder to the Committee that violent offender orders are preventive not punitive—that is something that we need continually to remind ourselves of—I ask the hon. Gentleman to withdraw the amendment.

David Burrowes: We have had an important debate on significant issues that go to the heart of concerns about the violent offender order. It was good to hear from the hon. Member for Somerton and Frome. I welcome his support for amendment No. 364 and take on board concerns about the detail of amendment No. 365. The intention is to apply properly the standard of proof for interim orders as well as full orders. The purpose of the debate was highlighted by the intervention of my hon. and learned Friend the Member for Harborough, which I welcomed, on the disparities between the burdens that are already in the Bill, let alone imposing a criminal standard that would improve the Bill.
The debate highlights why we need more clarity in the Bill. The Minister tries to provide reassurance through the McCann case and makes the point that the standard of proof is indistinguishable from the criminal standard, but that leads me to ask why that cannot be made explicit in the Bill. Then, soon after saying that the difference was indistinguishable, the Minister spoke about a sliding scale. That raised concerns.
Concerns raised during the passage of the Serious Crime Act 2007 remain. Given the fact that the violent offender order is a civil order, given the serious criminal sanction should such an order be breached, and given the restrictions that can be placed on individuals and the operation of the order, I wish to press amendment No. 364 to a vote.

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 8.

Question accordingly negatived.

Clause 86 ordered to stand part of the Bill.

Clauses 87 to 90 ordered to stand part of the Bill.

Clause 91

Notification requirements: initial notification

Vernon Coaker: I beg to move amendment No. 214, in clause 92, page 63, line 18, leave out ‘or’ and insert—
‘(ca) any prescribed change of circumstances, or’.

Edward O'Hara: With this it will be convenient to discuss the following:
Government amendments Nos. 213 to 216, 242, 249 and 250.
Government new clause 40—Notification requirements: prescribed information.

Vernon Coaker: Amendments Nos. 213 to 216 provide the Secretary of State with the power to add to the notification requirements of violent offender orders by secondary legislation. The clause will require that all individuals subject to a violent offender order or an interim violent offender order are also subject to notification requirements. Additions to the existing notification requirements are currently made only by primary legislation, but the Government feel that the police and public would benefit from the greater flexibility offered by the measures.
The notification requirements imposed on sex offenders as introduced by the Sex Offenders Act 1997 have proved an effective method by which to manage the risks posed by sex offenders in the community. We have previously strengthened the requirements through the Sexual Offences Act 2003 by requiring sex offenders to register more information with the police and by shortening the time scales by which information must be provided. However, the protection of children from sex offenders review identified the benefits of requiring offenders to register more information, which could mean offenders providing more personal details and so on. To enable the requirements to be changed more easily, the review recommended that we should take a power to amend them by secondary legislation. That will enable us to respond more quickly to technological developments and new patterns of behaviour. Government new clause 40 will provide that power. The Association of Chief Police Officers expressed its support for the review’s commitment to the additional requirements.
Amendment No. 242 will allow the Secretary of State to make transitional arrangements when prescribing additional information that must be notified by sex offenders and to create different requirements for different types of offender. A power to allow the Secretary of State to amend the notification requirements of the 2003 Act by secondary legislation is provided by new clause 40 and Government amendment No. 242. It makes it clear that the amendment to the Sexual Offences Act 2003, which states explicitly that transitional provisions can be made through regulations, does not affect the validity of transitional provisions in regulations that have already been passed under the Act—for example, the Sexual Offences Act 2003 (Travel Notification Regulations) 2004.
Amendment No. 250 would repeal sections 86(4) and 87(6) of the Sexual Offences Act 2003, which allow regulations made under those sections—foreign travel notifications—to make different provisions for different categories of persons.

David Heath: I note that this part of the Bill covers the English and Welsh jurisdictions, but not Scotland and Northern Ireland. What is the procedure for notifying Scottish or Northern Irish authorities when the home address notified under the initial requirement, or indeed under a notification of change, is in Scotland or Northern Ireland?

Vernon Coaker: I will have to get back to the hon. Gentleman on that. I cannot give him a proper answer now, but I shall try to do so at some point, or write to him.

Amendment agreed to.

Clause 91, as amended, ordered to stand part of the Bill.

Clause 92

Notification requirements: changes

Amendments made: No. 214, in clause 92, page 63, line 18, leave out ‘or’ and insert—
‘(ca) any prescribed change of circumstances, or’.
No. 215, in clause 92, page 63, line 24, leave out ‘or’ and insert—
‘(ca) the prescribed details, or’.
No. 216, in clause 92, page 63, line 45, at end insert—
‘(7A) In this section—
(a) “prescribed change of circumstances” means any change—
(i) occurring in relation to any matter in respect of which information is required to be notified by virtue of section 91(2)(h), and
(ii) of a description prescribed by regulations made by the Secretary of State;
(b) “the prescribed details”, in relation to a prescribed change of circumstances, means such details of the change as may be so prescribed.’.—[Mr. Coaker.]

Clause 92, as amended, ordered to stand part of the Bill.

Clauses 93 to 97 ordered to stand part of the Bill.

Clause 98

Offences

Question proposed, That the clause stand part of the Bill.

Edward Garnier: Subsection (6) sets out the penalties for offences in relation to notification. Will the Minister explain whether he seriously believes that it is appropriate that someone should be given up to five years’ imprisonment for failing to notify their national insurance number or home address on the date on which the notification should have been given?

Vernon Coaker: The only point that I want to make is that if the offence were as trivial as that, the court would not be expected to impose a five-year sentence. The hon. and learned Gentleman knows the courts better than I do, and that the relevant words are “up to”.

Edward Garnier: I do not mind being rebuked by the Minister or anyone else, but he has put in the Bill a potential five-year term of imprisonment for failing to comply with a notification requirement. Presumably the assumption is that there will be circumstances in which it is appropriate for the courts to give a five-year term to someone who has failed to notify the material under clause 91, or the provision would not be in the Bill. Will he explain in what circumstances he would hope to find the courts dishing out a five-year sentence?

Vernon Coaker: I did not mean to rebuke the hon. and learned Gentleman—far be it from me to attempt to do that. I cannot possible imagine every circumstance that might come before the court. I repeat the point that I made earlier. If the offence was as trivial as that which the hon. and learned Gentleman has just described, we would not expect the court to impose a five-year sentence. I am sure that he would not do that in the courts in which he acts as a recorder, even if the power were available to him. I cannot envisage all the circumstances, but I repeat that the period is of up to five years.

Edward Garnier: I think that I have made my point. The measure looks rather heavy-handed. Will the Minister consider what will allow a sentence of imprisonment, let alone a five-year sentence, for the offences described in clause 98? We are told, although I find it difficult to believe, that this is essentially a civil process. However, it is a civil process whereby people get banged up for five years if they do not notify the authorities of some relevant information. We need to keep some balance. It is either a civil process or it is not. It is either a serious crime or it is not. A five-year maximum is a heavy maximum. People can commit serious muggings, burglaries and drug offences and still not get five years.
If five years is to be the maximum sentence for simply not notifying people, that brings me back to the data protection issue that I did not talk about under clause 75. If we are to see fiascos such as the HMRC disaster, we need to be clear about the circumstances in which people will potentially be given quite heavy jail sentences.

Vernon Coaker: The hon. and learned Gentleman makes a point, but I say again that if he reads the whole of clause 98 and other parts of the Bill, as I know that he has, he will see that the penalty will match the severity of the offence. As clause 98 makes it clear:
“If a person fails, without reasonable excuse, to comply with any prohibition restriction or condition contained in...a violent offender order, or...an interim violent offender order...the person commits an offence”,
one would expect some of the provisions, prohibitions, restrictions or conditions that are breached to be more serious than the examples given by the hon. and learned Gentleman. I remind the Committee that other civil orders have that level of punishment if they are breached. As we know, the breach of the order is the criminal offence.
In reply to the hon. Member for Somerton and Frome, VOOs are applicable only in England and Wales. People would have to come to England and Wales to comply with the notification requirements.

Question put and agreed to.

Clause 98 ordered to stand part of the Bill.

Clauses 99 to 103 ordered to stand part of the Bill.

Sitting suspended.

On resuming—

Schedule 17

Closure orders: premises associated with persistent disorder or nuisance

Harry Cohen: I beg to move amendment No. 328, in schedule 17, page 193, line 11, at end insert—
‘(d) the making of the order is not a disproportionate response to the disorder or nuisance caused;
(e) the making of the order will not cause unnecessary hardship or suffering to the families of those against whom the order is made;
(f) appropriate steps have previously been taken to address the disorder or nuisance without success.’.

Edward O'Hara: With this it will be convenient to discuss the following amendments: No. 329, in schedule 17, page 193, line 30, at end insert—
‘(10) No closure order shall be made unless the magistrates’ court is satisfied that appropriate arrangements have been made by the local authority for alternative accommodation and support for those affected by it.’.
No. 354, in schedule 17, page 193, line 30, at end insert—
‘(10) If a child under 18 is resident on the premises, no action shall be taken until a multi-agency assessment of the child’s needs has taken place.’.

Harry Cohen: My amendments relate to the power of closure orders. Amendment No. 329, which is the key amendment, refers to vulnerable people and their families who might be a nuisance and could therefore be subject to a closure order.
Closure orders combined with antisocial behaviour orders have been very successful. They provide the power to close premises for three months and, in exceptional circumstances, for six months. They have been appropriate, particularly for premises in which there have been drug problems, although sometimes premises can be closed for too long, and they blight the rest of the neighbourhood. However, the orders have solved problems and they are popular. The Minister was right to say that orders such as ASBOs and closure orders are popular when a nuisance has been caused.
However, there are problems relating to the orders. One is the issue of vulnerable people; the other is what Liberty calls “cuckooing”, which means displacement. That is an unfortunate consequence. Once premises are closed down, people who are the subject of the order may then target very vulnerable people and move into their premises. On one level, the Government or the police authorities need to deal with that problem and be alert to the danger of cuckooing, which is the unfortunate consequence of a closure order.
The orders also provide powers to close premises for activities that are not unlawful. For example, lots of people coming in and out of premises might not necessarily be a sign that antisocial behaviour is going on. It might be that lots of parties are going on. I agree that they are a nuisance, but in themselves they are not necessarily unlawful. In a sense, that is a precedent that needs to be considered.
The only other point that I want to make is that when the original consultation came out, it included very strong safeguards. I will not take up the time of the Committee and read the whole report, but it mentioned putting in robust guidelines for the consideration and operation of the closure process, such as considering whether closure is the most appropriate course of action and addressing the needs of vulnerable people in the household, including children and young people. There was quite a detailed statement in relation to the original consultation, which is not reflected in the Bill. That is the point that I am most concerned about.
Vulnerable people are potentially involved—they are not necessarily the ones causing the nuisance, but may be relatives or others who live in the house. They could all be thrown out and made homeless. My amendment says that there should be provision to look after them and, if necessary, the local authority should provide alternative accommodation for vulnerable people.

David Heath: I seem to spend a lot of time in this Committee asking, “What about the children?” In this instance, I am talking about children who have not been accused of any crime or even of any potentially offending behaviour, but who merely happen to reside in the house or premises that are subject to a closure order.
The hon. Member for Leyton and Wanstead has already made a number of the points that I wanted to make. Amendment No. 354 is a probing amendment to see how the Government intend, first, to assess the needs of vulnerable people on such premises and, secondly, to cater for them if a closure order is made. As the hon. Gentleman said, this issue was recognised in the Government’s own consultation paper, “Strengthening powers to tackle anti-social behaviour”, which the Home Office published in 2006. He quoted part of a passage from it that I had intended to quote when he said:
“The needs of any vulnerable people in the household, including children and young people, will need to be considered.”
It goes on to say:
“Their safety must not be compromised and a clear plan needs to be put in place to safeguard them and promote their welfare if the closure goes ahead.”
Amen to that. It is exactly what the Government should be considering in this context, but at the moment there is no mention as far as I can see, in either the parent clause or the schedule, to that assessment being made.
In other legislation of a broadly similar type, that linkage is made. Let us consider, for instance, housing benefit sanctions under section 31 of the Welfare Reform Act 2007. There is a link between the sanction and helping the family in question to deal with the consequences, but in the Bill no link is made between the closure order and rehabilitative services. In my view, there should be such a link. The Government appear to have at least considered it at an earlier stage, but it does not appear in the Bill.
How does the Minister propose to ensure that vulnerable people, such as children, who reside in the same premises are safeguarded in relation to actions that may be completely beyond their control—actions that are committed by another person, perhaps a parent or another relative, who is resident in the same premises? I ask that because we do not believe in collective punishment in this country. It is not appropriate that we should not have regard for the interests of innocent parties.

David Burrowes: I welcome the amendments to clarify what happens when closure orders have unintended consequences that affect the most vulnerable people. I am referring to family members or other residents of the premises who are not in any way associated with the behaviour that is the basis for the closure order. I also wish to take the opportunity to assert our support for the principle of closure orders and to acknowledge the success of similar orders in the past.
The points made by the hon. Members for Somerton and Frome and for Leyton and Wanstead on the two amendments were very well made. It is interesting to consider closure orders in Scotland. There, unlike in England and Wales, the sheriff must have regard to these two factors when determining whether to make a closure order: first, the ability of any person who habitually resides in a premises to find alternative accommodation and, secondly, any vulnerability of any such person who has not been engaged in antisocial behaviour that has occurred in the premises.
Those two additional requirements would not water down the purposes of closure orders, but they would deal with hon. Gentlemen’s concerns. They would explicitly make clear what would happen to vulnerable people who are not engaged in antisocial behaviour. Will the Minister say why a measure that is in place and explicit in Scotland is not proposed for England and Wales? The Home Office lauds the success with which the Scottish powers have been used, so perhaps the guidance that is available there should also be available in England.
Another practical point relates to homelessness—those who are unintentionally made homeless by closure orders. It is accepted that there should be no statutory duty to house those who have brought homelessness upon themselves through antisocial behaviour, but if local authorities increasingly implement closure orders, they will have to deal with the practical matter of housing vulnerable individuals who are left without a home because of the orders. I want the Minister to clarify that question and to provide some reassurance on guidance. Will additional or amended guidance be provided to local authorities for when they make decisions on housing people who, through no fault of their own, are as much the victims as the rest of the community are of behaviour that takes place in houses that become subject to orders.

Vernon Coaker: Welcome back, everyone.
May I begin by saying to the hon. Members for Enfield, Southgate, and for Somerton and Frome, and my hon. Friend the Member for Leyton and Wanstead, that I welcome their support for the principle of premises closure orders? I also welcome the recognition that, alongside crack house closures, they have made a real difference in many communities and have dealt with problems. Some premises in all hon. Members’ constituencies cause huge difficulties—we accept that. We are left with the question of what to do about the problem. I accept that any action must be proportionate and reasonable, but it must be effective. Sometimes, not addressing a problem can cause it to continue.
We all face the question of how many warnings to issue. When does the end point come? It is quite difficult to decide and, in fact, the question is rhetorical. I can think of examples from my constituency, as I am sure others can, in which the various measures that we might wish to take have been taken, yet the antisocial, disruptive behaviour continues. Sometimes, people are at a loss, and when they ask me why nobody is doing anything about the problem, I am forced to reply that lots of people are doing something, but we are left with the fact that it is not working. Allowing such problems to continue—I am not suggesting that hon. Members believe that it should be allowed—does not do a great deal for the children who live in such houses or those who live in the area. We are left with a huge dilemma for public policy and sometimes one wonders what can be done.
Premises closure orders are an attempt to plug a difficult gap and they had huge public support. The question is, how do we make them work proportionately and in a way that we can all feel comfortable with? The hon. Member for Enfield, Southgate, if I remember rightly, asked whether there will be guidance and rules and what the guidance will include. There will be robust guidance on how the orders operate and how the process is put into practice. I will ensure that we include housing considerations as part of the guidance. I make that commitment to the hon. Gentleman because he specifically asked about that. However, as part of the guidance we would also expect the police, the local authority and all of the other statutory agencies to show that consideration has been given to every other possible intervention prior to a premises closure order being applied for. In other words, the guidance will say that this process is only appropriate if it is an absolute last resort and nothing else seems to be appropriate.
In some circumstances, although this sounds contradictory, actually closing the premises will force the system to deal with the needs of children and vulnerable people. I say that as a teacher. I make the analogy that, as a deputy head teacher, I never wanted to exclude young people from school, but in one or two instances the only way to force a resolution to the problem was to take what I regarded as a draconian step. In respect of premises closure orders, in some circumstances, that point will be reached. In other words, the order can act as a catalyst.
I know what my hon. Friend the Member for Leyton and Wanstead is trying to do, and, as the hon. Members for Somerton and Frome and for Enfield, Southgate said, we have to protect children and vulnerable people. I believe that through guidance we can ensure that we do that, even though the safeguards are not necessarily on the face of the Bill. However, I point out to the hon. Gentleman and to my hon. Friend that new section 11B(7) of the Anti-social Behaviour Act 2003, inserted by schedule 17, states that upon application to the court for a closure order:
“The magistrates’ court may adjourn the hearing on the application for a period of not more than 14 days to enable—
(a) the occupier of the premises,
(b) the person who has control of or responsibility for the premises, or...any other person with an interest in the premises—
I would expect that to be a parent, whether a mother or a father, of children involved—
“to show why a Part 1A closure order should not be made.”
I would expect that in those circumstances people could make representations to the magistrates court. The magistrate can adjourn and, which may include children, people can then make representations to say that the premises closure order should not go ahead because proper consideration has not been given to the vulnerable people in the household that is to be shut.

Sally Keeble: Does my hon. Friend agree that if serious consideration is to be given to not giving a premises closure order because there are young children in a house that is being used in certain ways, for example in crack houses, would it not be advisable at that stage for the medical safeguarding children board to be involved, to make an assessment of whether the premises should be closed, and to make proper arrangements for the protection of the children?

Vernon Coaker: That is a good point and I will take it on board. It should certainly state within the guidance that all along the way, local safeguarding children boards and such like should be available. As I have said, I hope that my hon. Friend the Member for Leyton and Wanstead will be able to withdraw his amendment. There are safeguards in the Bill and there will be guidance, although I take the point that alongside what is a good power, we must ensure that we protect the vulnerable.

Harry Cohen: I appreciate the assurances and frank answers given by the Minister, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That this schedule be the Seventeenth schedule to the Bill.

David Burrowes: The schedule has a very wide definition of premises associated with disorder or nuisance. I refer to new section 11K(13) of the Anti-social Behaviour Act 2003, inserted by the schedule, which states:
“Premises includes—
(a) any land or other place (whether enclosed or not);
(b) any outbuildings which are or are used as part of premises.”
That definition of premises has a wide remit, and I would like the Minister to comment on that and on the intentions behind giving such a wide ambit in relation to premises. Is it part of the purpose of that wide ambit to include open land that might be owned privately or publicly and which may, for example, include a Travellers’ site where there has been evidence of persistent disorder or nuisance? Would that type of persistent disorder or nuisance come within the ambit of premises closure orders?

Vernon Coaker: The hon. Gentleman is right to point out that we have made the definition wide. We have done so because there may be buildings or land to which these orders may be appropriate. Therefore, with that in mind, we included that measure within the Bill to give the opportunity for the police or local authority to apply to the court for such an order.

Question put and agreed to.

Schedule 17 agreed to.

David Heath: On a point of order, and to avoid unnecessary repetition, I wonder whether it might be for the convenience of the Committee if, contrary to the grouping on the paper, we might deal with amendments Nos. 337 to 339 and clause stand part together. I would be happy to do that if you, Mr. O’Hara, and the Committee were agreeable.

Edward O'Hara: That seems sensible, if it is for the convenience of the Committee.

Clause 104

Offence of causing nuisance or disturbance on NHS premises

David Heath: I beg to move amendment No. 337, in clause 104, page 70, line 14, at end insert ‘and’.

Edward O'Hara: With this it will be convenient to discuss the following: Amendment No. 338, in clause 104, page 70, leave out lines 17 to 19.
Amendment No. 339, in clause 104, page 70, line 38, at end insert ‘and
(d) any surgery, clinic or other premises in which medical, surgical or paramedical treatment is provided to the public by NHS staff members,’.
Clause stand part.

David Heath: I am grateful Mr. O’Hara, and I hope that I can curtail the debate a little.
The lead amendment would simply insert the word “and”, which is of limited value. However, I want to explain my concerns about the clause. Let me say at the start that nothing I say should in any way be interpreted as to suggest that I do not recognise the real problem of people causing nuisance or disturbance in hospitals and other NHS premises. It is absolutely deplorable when that happens, but unfortunately it is a growing trend. It worries me as much as I am sure it worries other members of the Committee. I am therefore intent on ensuring that if there are ways of reducing the risk of such a disturbance, we should take them.
I start from the premise that I am not convinced that we need a change in the law to achieve the Government’s objective. My fear is that we are back in the wonderful world of sending signals. The clause is sending a signal that one must not be naughty in hospital. However, nobody is taking the trouble to ascertain whether the change in law will help the authorities to investigate, arrest or prosecute successfully.
On Second Reading, I drew the attention of the Lord Chancellor to what appeared to me to be the extremely pertinent case of Porter v. Commissioner of Police for the Metropolis, 1999. The reason that I drew attention to that case was that it very clearly set out that where there is a breach of the peace, a civil trespass and a person refusing to leave the premises after being asked to leave, the attendance of the police and an arrest for breach of the peace are entirely in order. Therefore, there is no problem at the moment with the police intervening in precisely those circumstances.
I do not know whether anybody has had a chance to look at the case since the Second Reading debate and to see why it should not be applicable in the case of health service premises as opposed to any other premises. It seems to me that it gives a clear indication that the police would not be acting improperly if they were asked to deal with such a disturbance and to apply existing law. That is the first point.
The second point is that if there are, for some reason, the police or anybody connected with the health service have insufficient powers, why are the Government seeking to address this nuisance in respect only of NHS premises rather than other public premises and other Government offices? As we all know, there are premises run by the Department for Work and Pensions, for instance, where there is every bit as much of a risk of violent and disturbing behaviour on the part of the occasional client as there is in a hospital. Why is the protection afforded by the clause not open to other premises that are run by the state for the benefit of the citizen? There is no obvious answer.
I come to the third question. If the Minister can satisfy me that it is necessary to deal with health service premises and not any other Government premises, why does he restrict the application of this clause to hospitals? This point was made by hon. Members on both sides of the House on Second Reading. If the provision applies to hospitals, it should surely apply to other premises on which treatment is carried out on behalf of the health service, which are not described as hospitals: surgeries, clinics and any other premises where a doctor, nurse or paramedic of one kind or another practices.
Perhaps I should declare my interest as a qualified optician, although I have not practiced within the health service, or anywhere else, for a very long time. Presumably, there may be circumstances in which I re-register and provide services under contract to the health service again. If I did, why would I not be protected; why would a GP not be protected; why would the practice nurse not be protected in the same way as a hospital? That is why I tabled amendment No. 339, which covers all treatment provided by NHS staff members, who are defined in the clause as anyone working directly for the NHS or under contract to it, which covers every possible NHS treatment that might be provided. Why are those other NHS staff members excluded?
Amendments Nos. 337 and 338 would remove subsection (1)(c), which makes the extraordinary exclusion that the one type of person who cannot be subject to the provision is someone who arrives at a hospital seeking treatment. An awful lot of the people who cause disturbances in hospitals arrive seeking treatment—ask anyone who works in accident and emergency or trauma units and they will confirm that. Those people are specifically exempt from the provisions of the clause, which seems extraordinary. I suspect that it is to avoid any potential human rights implications of effectively refusing treatment to someone who has suffered a serious injury. I can only presume that that is the rationale, but it makes the clause almost ineffective. It means that staff can shoo off people who are so-called friends of a patient, but when patients—they may be intoxicated or simply fed up with waiting, and expressing themselves violently or not liking the treatment that they are getting—start throwing their weight around and causing a disturbance, the clause will not apply. A policeman, if called, will be required to assess whether the person causing the affray requires treatment and whether they are seeking it—a diagnosis that I would suggest the average police constable is not well equipped to make.
There seem to be a number of anomalies in the clause, well intentioned though its. I support the intention behind it, but the Minister needs to explain why it has been framed as it has and allay my suspicion that it is another press release translated into statute rather than a serious attempt to mitigate a real nuisance.

Edward Garnier: I largely agree with the thrust of the hon. Gentleman’s points. Like him, I fully accept that there are NHS staff who live in genuine fear of violence and abuse, particularly on Friday and Saturday nights in some of our inner-city accident and emergency units. They deserve all the protection that any public servant should get when looking after the public.
We know from the consultation document, “Tackling nuisance and disturbance behaviour on NHS premises”, that violence against staff is estimated to cost the NHS between £10 million and £270 million per annum, depending on the degree of absenteeism due to sickness that can be attributed to an assault. It is quite a wide margin, but there is clearly a genuine problem.
I know from my constituency experience that the accident and emergency unit at Leicester Royal infirmary is not a nice place to be on a Friday night once the pubs have emptied, now that the Government’s 24-hour binge drinking is—no, that was a cheeky remark. We all understand that a lot of people who are high on drugs injure themselves for one reason or another and end up in the accident and emergency room. They cause injury not only to themselves but to the hospital and ambulance staff who do their best to assist them. I, like the hon. Gentleman, think that the staff deserve every protection. However, there is plenty of criminal legislation on the statute book already that can assist them.
The problem lies not so much in the need for new laws, but in the need for sufficient security staff employed directly by the hospital, or police officers, to sort people out when they are causing a nuisance. The police could arrest people and take them away and the security staff could presumably remove them from the hospital if they were causing a nuisance, threatening violence or using foul and abusive language and refusing to leave the premises when invited to do so. I do not think that there is an absolute right to receive hospital treatment. Is there? Perhaps the Minister will be able to tell me. People have no right to remain on hospital premises and to threaten to commit crimes or to commit them. I would not have any sympathy with anybody, even if he had a broken arm, who took a swipe at a nurse or was abusive to a porter and was asked to leave the premises. It must be a condition of entering the premises that people behave themselves. I do not see why we should be in the least bit sympathetic to people who need treatment but refuse to behave properly, especially if they have, of their own free will, got drunk or taken drugs that have loosened their inhibition.
Although the motive behind the measure is good, we need some persuading that it is necessary, or we will just clutter the statute book with yet more Acts. About 3,000 additional criminal offences have been created since the Labour Government came into office. We really need to implement a few of those. I cite the Criminal Justice Act 2003, which is still not implemented to a considerable extent.
I have just become the patron of the Lambeth branch of the Alzheimer’s Society. That encourages me to remind the Committee about something in the House of Commons Library brief, on page 91:
“A joint response from several charities concerned with mental health, learning disabilities and Alzheimer’s, available from Mencap, argues that:
We agree that nuisance and disturbance behaviour on NHS premises is a problem. But we do not support these proposals, which we believe are unnecessary and badly thought-through, and which we fear will fail to have the intended effect on nuisance and disturbance behaviour on hospital premises, while creating additional risks to vulnerable patients.”
In particular,
“The proposals could cause significant risks to the health and safety of disabled people and other vulnerable people on NHS premises...The Government has consistently failed to draw a coherent link between the problem of assaults on NHS premises and the proposed solution...The vast majority of people who do cause a nuisance or disturbance on NHS premises will not be covered by the proposals, which will not make the NHS safer.”
That links with the point that the hon. Member for Somerton and Frome made, relating to subsection (1)(c), which is that people cannot commit an offence if they are on the premises
“for the purpose of obtaining medical advice, treatment or care for himself or herself.”

Vernon Coaker: We have tried to deal with the hon. and learned Gentleman’s fair and reasonable point. Under clause 105(4),
“An authorised officer cannot remove a person under this section or authorise another person to do so if the authorised officer has reason to believe”
that
“(b) the removal of the person would endanger the person’s physical or mental health.”

Edward Garnier: I am sure that the Government have tried to do a number of things. There are already instruments in our laws to make hospital premises safe, or safer, but that fundamentally requires people to do the making safe: passing laws does not necessarily do that.
First, we need hospitals to be sufficiently funded so that they can employ in-house security staff who do the job and are pretty forthright in their work when that is required of them. Secondly, we need sufficient numbers of police officers available—a Home Office responsibility —particularly in inner cities at the trouble spots, which are the accident and emergency departments on Friday and Saturday nights

Vernon Coaker: The hon. and learned Gentleman makes an extremely important point about those with mental health problems. Under subsection (1)(a), a person commits an offence if they act “without reasonable excuse”. I am not saying that some of the people in the instances that he quoted have an excuse, but I think that he understands my point.

Edward Garnier: I do not think that we need to prolong this conversation for too long. We all agree that NHS staff need protecting, just as we all agree that DWP staff and library staff in town halls need protection. That is not the issue. The question is whether clause 104 and its successor clauses are apt to do what the Government and everyone else would like. I have my doubts. Essentially, it is a question of the police and NHS security staff doing the job that the public employ them to do. I agree that that is not easy and that primary care trusts and hospital trusts are either running a deficit or strapped for cash. If there is money to spare, they will spend it first on hospital equipment or medical procedures, rather than on security staff, who very often are the first to go if there is a need to make cutbacks. Again, however, that is a wider issue for the Government.
Like the hon. Member for Somerton and Frome, I accept that the clause has not been put in for a wrong or improper purpose, but I have grave doubts about whether it will improve the situation. To use an expression that is often used in defence debates, unless we have troops on the ground, we will not achieve very much. It might make us feel better, but it will not achieve anything. I am not going to vote against clause 104; I just think that it is one of those things that is nice to have, but which does not achieve much.

Vernon Coaker: I thank hon. Members for their comments.
The majority of health bodies that responded to the 2006 consultation, which dealt with tackling nuisance behaviour and disturbances on NHS health care premises, felt that the existing law was inadequate for dealing with low-level nuisance behaviour and that something needed to be done. We have tried to respond to points put to us by NHS staff about problems that they experience. I accept that if a doctor, nurse, cleaner or anybody on NHS premises is attacked—in the sense that we all understand that word—or violently abused, we would expect the police to be called. That is the right and proper response. However, the clauses before us deal with lower-level nuisance behaviour and disturbances that could escalate into something more serious if they are not stopped. I take the point that criminal sanctions are available for serious breaches of the peace and disturbances, but the clauses address what we were told is a very real need to deal with low-level nuisance behaviour. I think that they will make an important difference.
Accepting the amendments would run a significant risk of criminalising the actions of a person seeking medical treatment or advice, or of denying them a service, because they display low-level nuisance or disturbance behaviour. I say to the hon. Member for Somerton and Frome that I do not think that it is acceptable to deny medical treatment to those who need it. It may be vital to that person’s health and well-being that they receive the medical advice or treatment that they have sought by attending hospital. Their need for treatment may far outweigh any need to remove them from the premises for having committed the offence of causing a nuisance or disturbance on the premises. This is a strange reversal of the role, but it may be disproportionate to allow people to move those who are in need of that medical treatment.
The application of this offence to non-patients only is a targeted response to a specific problem. Our primary focus is to ensure that patients receive the care they need and that staff can work in NHS premises without risk of that disturbance and low-level nuisance.
 Mr. Heath rose—

Vernon Coaker: Will the hon. Gentleman bear with me until the end? I just want to put a couple of arguments against the points that he made and then to say something that might be more helpful.
Widening the scope of the offence to apply to a broad range of NHS health care settings would prove impractical. GP surgeries, for example, exist in a different environment from hospital premises. Most hospitals have full-time security guards and CCTV coverage to protect staff from those causing a nuisance or disturbance and to deter potential offenders. In a hospital setting therefore, trained security staff could assist in exercising the power to remove a person from the premises should they commit the offence.
Not all GP practices—not many in my experience—have such security services available to them. Therefore enabling the offence to be committed on such premises would prove problematic as there would be no guarantee that a correctly trained person would be available to remove an offender from the premises, using reasonable force if necessary. Applying these proposals to GP practices would potentially put the safety of GPs and their practice staff at risk if they were to use these powers. Applying the offence to a pharmacy setting would also prove impractical, as it would be difficult to distinguish between whether the offence was committed against the pharmacist in their capacity for dispensing NHS prescriptions in their role as an NHS staff member, or in their capacity for selling general retail goods as a private business person.
The point that I am trying to make to the hon. Gentleman is that there are issues with respect to extending the scope of the offence outside NHS premises but, as the Lord Chancellor said, we will reflect on this. I know that the hon. Gentleman shrugged a little at a couple of the points I was making, but there are difficulties with extending this. It is more complicated than simply saying that the offence will be extended to premises such as NHS doctors’ surgeries or some others that might be considered to be associated with the NHS. The Lord Chancellor committed to looking at this and certainly I will commit to do that too.
I do not want to go into too much other detail about clause 104. I welcome the points that have been made in the sense that the issue is not that people oppose the clause, but whether they believe it will add anything to the safety of staff and the security of those who act appropriately in hospitals. All I can say is that this is a serious attempt to plug what we see as a gap. It is not in place of the police. It is an attempt to prevent the escalation of nuisance behaviour into more serious behaviour that might require the attendance of police officers. I hope that in the light of those comments the hon. Gentleman will consider withdrawing his amendment.

David Heath: I am grateful to the Minister. I was not desperately convinced by some of his arguments. I wonder whether he entirely convinced himself. The idea that a pharmacist does not need protection if he happens to be selling a comb with the packet of aspirins that he is selling at the time seems a threadbare argument. I am also concerned that a Home Office Minister should come out with what is to me at least the novel argument that a person can commit an offence only if there are security staff available to detain him or to notify a constable. That appeared to be what he was saying. He seemed to be saying that that could be an offence if it was in a hospital, because there were security staff and CCTV, but if it was in a place where there happened not to be security staff and CCTV, it would not be an offence at all. I think that, if we require the attendance of a police officer for an offence to be committed, that has rendered most of the criminal law inoperable in most of my constituency. That seems a novel concept in the interpretation of statutory offences.
I also think that the Home Office has not cottoned on to changes in the way that we operate medicine in this country. I say that because hospitals will be, if Lord Darzi of Denham has his way, a thing of the past. We are going to move away from hospital provision towards smaller units, the so-called polyclinic. The polyclinic does not constitute a hospital and it is available for a particular range of medical or surgical procedures, but I would say that it falls between hospital provision and a general practice surgery. All those polyclinics, which the Government now have as a stated policy for the provision of services, will fall outside the ambit of the clause. Therefore, I think that the Minister needs to look seriously at how he chooses to define NHS premises for the purposes of this clause.
My last point concerns people with mental health problems, dementias and the like. The Minister drew our attention to clause 105(4)(b) in that respect. I doubt very much whether it is appropriate to require an “authorised officer”, by which we can assume that we mean a security officer, to have the necessary training to form a view that has any validity in law as to what damage he or she may cause to the “physical or mental health” of a patient by any action that he or she may take.

Edward O'Hara: Order. We are not straying onto the grounds of the next clause yet, I hope.

David Heath: That would be quite wrong, Mr. O’Hara. I was simply responding to the point made by the Minister, who drew our attention to the next clause in partial answer to the point made by the hon. and learned Member for Harborough. If the Minister can use the next clause as a defence for his position, I think that I must be in order to attack his defence of his position, in response to the amendments and the clause stand part that is under discussion.
In summary—

Maria Eagle: He is going to say it all again now.

David Heath: I am not going to say it all again; I say that to the Minister, who interrupts from a sedentary position and extends my remarks in a way that is uncalled for.
I would like to say one particular thing in conclusion: the Minister makes his entire argument on the basis that there is no provision at the moment for dealing with low-level nuisance. He says that we are covered for assault; we all know that and we know that we are covered for serious violence offered to members of staff. However, he says that we are not covered for low-level nuisance. I believe that we are. The Minister has not addressed that issue. He has also not explained why, when the NHS bodies come to the Home Office and say that they have a problem in this regard, the Home Office does not answer, “Actually, you haven’t if the law is interpreted properly, and we will issue new guidance to the police and to your security services, so that you know where you stand.” Instead, he simply says, “Oh, you say you have a problem, so let’s change the law.” I think that that is rather a superficial approach for the Home Office to take, and he still has not convinced me of the utility of the clause in its present form.
Having said that, I do not intend to press my amendment to a Division because I hope that the Minister will still reflect of some of the issues that I have raised and return to them on Report.

Vernon Coaker: I said to the hon. Gentleman that I will reflect on what he has said.

David Heath: I hope that the hon. Gentleman will be as good as his word. In fact, I am confident that he will be. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 104 ordered to stand part of the Bill.

Clauses 105 to 107 ordered to stand part of the Bill.

Schedule 18 agreed to.

Clause 108 ordered to stand part of the Bill.

Clause 109

Individual support orders

Question proposed, That the clause stand part of the Bill.

David Heath: I rise to draw attention to the reservations expressed by the Standing Committee for Youth Justice about the clause. It is concerned that individual support orders have not proved a great success. The clause would allow ISOs to be made more than once, not only simultaneously with an ASBO, and to be attached to ASBOs that are obtained on conviction or in the county court, whereas at present they are available only in civil proceedings in the magistrates courts.
The committee says that only a limited number of ISOs have been used and suggests that the low take-up rate reflects a lack of knowledge about ISOs among sentencers and youth offending team duty officers. It also suggests that, in cases when a young person had contact with the youth offending team through an existing court order, there was a general assumption that an ISO was unnecessary because it would add nothing to services that were already in place.
The committee put it to me that the Government’s proposals might increase the number of ISOs to an extent, but that they would not deal either of those issues and would reinforce the current perception that support for vulnerable young people subject to ISOs should be provided through the youth justice system, and youth offending teams in particular. It argues that it is a matter for other support services and that the requirements within ISOs could make matters worse—not better—because there could be breach proceedings if the requirements of the ISO were not carried out by the young person. The committee believes that the support services should be available, irrespective of the behaviour of the young person, as a necessary part of rehabilitation. I welcome any comments that the Minister might have about my remarks.

Vernon Coaker: In some respects, I agree with the hon. Gentleman. He is right to say that individual support orders are not used to the extent that we would hope. Part of the intention behind the clause is to increase the number of ISOs that are issued. There is a lack of knowledge. That is a fair point. It is something that we have addressed through the Home Office, but it will now also be dealt with through other Departments, including the Ministry of Justice. The whole point of individual support orders is to deal with some of the criticisms that have been made and ensure that young people subject to antisocial behaviour orders are given the support that they need to help them address their antisocial behaviour. The individual support orders try to achieve some of the things that he and other members of the Committee have argued, throughout today, are necessary if we are to divert young people away from antisocial behaviour and criminal activity. The clause extends the use of individual support orders and makes them available for antisocial behaviour orders, on conviction.
The argument for individual support orders is one of resources and of agencies working together, but we need to ensure that more of them are used, because they are often very successful and it is a source of regret that they are not used in more cases.

Question put and agreed to.

Clause 109 ordered to stand part of the Bill.

Clauses110and 111 ordered to stand part of the Bill.

Schedule 19

Police misconduct and performance procedures

Vernon Coaker: I beg to move amendment No. 227, in schedule 19, page 203, line 31, leave out ‘counsel or a solicitor’ and insert ‘a relevant lawyer’.

Edward O'Hara: With this it will be convenient to discuss Government amendments Nos. 228 to 235, 240, 247 and 254 to 256.

Vernon Coaker: I have 25 pages of notes on the provisions. [Hon. Members: “Oh no!”] I am only joking. It is not a good joke at this time of night.
These are technical amendments, which, for example, update the terminology used to take account of provisions used in the Legal Services Act 2007. The term “counsel or solicitor” will be replaced with the term “relevant lawyer”, which will have the meaning ascribed to it in the 2007 Act. There are a number of other such technical amendments and, with the Committee’s indulgence I will move them formally.

Amendment agreed to.

Amendments made: No. 228, in schedule 19, page 203, line 36, leave out ‘counsel or a solicitor’ and insert ‘a relevant lawyer’.
No. 229, in schedule 19, page 203, line 39, leave out ‘counsel or a solicitor’ and insert ‘a relevant lawyer’.
No. 230, in schedule 19, page 204, line 2, leave out ‘counsel or a solicitor’ and insert ‘a relevant lawyer’.
No. 231, in schedule 19, page 204, line 31, at end insert—
‘“relevant lawyer” means a person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes the exercise of a right of audience (within the meaning of that Act);’.
No. 232, in schedule 19, page 204, line 44, leave out ‘regulations’ and insert ‘rules’.
No. 233, in schedule 19, page 205, line 12, leave out ‘counsel or a solicitor’ and insert
‘a relevant lawyer within the meaning of section 84’.
No. 234, in schedule 19, page 205, line 20, leave out ‘Regulations or’.
No. 235, in schedule 19, page 205, line 22, leave out from beginning to ‘under’ in line 23 and insert—
‘(4) For subsection (5) substitute—
“(5) A statutory instrument containing rules’.—[Mr. Coaker.]

Question proposed, That this schedule, as amended, be the Nineteenth schedule to the Bill.

David Burrowes: I do not wish to take up too much time. Nevertheless, it is important to register some points about this part of the Bill, albeit that it is one on which we can reach agreement, and there is consensus on the need for reform of procedures concerning police misconduct and performance in the investigation of complaints of police misconduct.
We need to avoid the situation which has been referred to in past debates and reviews as the extreme end, in which a police officer who has completed two years’ probation and become a full constable is referred to as almost unsackable. There are also other cases of low-level misconduct that need to be dealt with expeditiously, properly and with early resolution at the lowest level. We must respond to concerns that hearings should be less formal and not over-adversarial, and ensure that a quasi-judicial adversarial manner, not dissimilar from a military court tribunal, is not adopted in all cases. We welcome the moves, following the recommendation of the Taylor review, to ensure that the mechanism for disciplining officers is proportionate, timely, transparent, fair and cost-effective.
There is a need to ensure that investigations proceed expeditiously and that time limits are in place. Concerns have been raised about the prolonged amount of time for which police officers are subject to investigation, particularly those who are suspended—they are referred to as “gated”—and subject to conditions. For example, one condition is that they cannot take on any front-line duties. The concern relayed to me is that the position has been accepted and has then continued for several months—indeed, for a year in some cases. The officers have not had a formal resolution while they have been gated, and they have been in an invidious position while not knowing the outcome of their misconduct hearing. They are suspended with conditions.
It is important to deal with the issue in a timely manner and across the board—for police officers at the lower as well as the higher end of the scale. It would be helpful to receive an assurance from the Minister about the introduction of time limits. They would be helpful in such situations and would ensure that we would proceed, as we all would wish, to a quick resolution with a proper, accountable and transparent approach throughout the hearings.

Vernon Coaker: Schedule 19 makes several amendments to the Police Act 1996 to enable changes to be made to the procedures for dealing with police conduct, efficiency and performance. The schedule also makes equivalent changes to the Ministry of Defence Police Act 1987 for the purposes of the Ministry of Defence police, and to the Railways and Transport Safety Act 2003 for the purposes of the British Transport police. The changes arise out of the recommendations of the Taylor review into disciplinary arrangements, which was published in January 2005. The recommendations are aimed at improving and modernising police disciplinary and performance procedures, and they have received the full support of the Police Advisory Board for England and Wales. Current procedures for dealing with police officer discipline and poor performance issues are set out in the Police (Conduct) Regulations 2004 and the Police (Efficiency) (Amendment) Regulations 1999. New proposed conduct and performance regulations, which are being prepared and are available for viewing, set out the proposed procedures for dealing with discipline and performance issues. The proposed regulations will implement the recommendations of the Taylor review, and they have been prepared with and approved by the Police Advisory Board for England and Wales.
The amendments to the Police Act 1996 in the schedule will permit the Secretary of State to make regulations setting out new procedures. Time limits—this has just arrived in my brain—are covered in draft regulations made under the Bill. They have been consulted on and we will share them with the Committee in due course.

Question put and agreed to.

Schedule 19, as amended, agreed to.

Clause 112 ordered to stand part of the Bill.

Schedule 20 agreed to.

Clause 113 ordered to stand part of the Bill.

Clause 114

Inspection of police authorities

David Heath: I beg to move amendment No. 340, in clause 114, page 78, line 6, at end add—
‘(2AA) In carrying out an inspection of a police authority under subsection (2A), the inspectors of constabulary may request one or more other police authorities (or their representatives) to assess any aspect of performance and to make a report.”’.
I ought to declare my “previous” at the beginning: I was formerly chair of a police authority and a member of the Audit Commission, so I have seen the process from both ends.
There is a general view among police authorities that they have no problem with the sort of joint inspection procedure that the Government have mind. Indeed, they see advantages in Her Majesty’s inspectorate of constabulary joining forces with the Audit Commission to look at how a police authority discharges its duties.
The reasons for that are fairly clear: a police authority does not fall into the normal category of local authorities that are the subject of Audit Commission work. It is a form of local authority, but it is a very specialist one that deals with areas that are beyond the normal range of matters considered by the Audit Commission because of its policing element. We have an inspectorate—Her Majesty’s inspectorate of constabulary—that is specifically charged with looking at policing issues, but nevertheless has little understanding of the issues relating to local authorities. So, putting the two together would produce an inspection regime that would cover all aspects of a police authority’s role.
This has been a long-term objective of the Government. They intended to create the joint procedure in the context of the Police and Justice Act 2006, but the proposal was dropped when there was a substantial change in that Bill on criminal justice inspections and, save for section 29 of that Bill, the matter was put on the back burner, albeit, I believe, with the intention of bringing it back at the first opportunity. This Bill is that opportunity.
I am going to argue against not the principle of the proposal, but the detail in the Bill, because the drafting is somewhat obscure. It relies on people putting together several different enactments in order to see exactly what is proposed. Indeed, if one were to read the Bill without looking at other enactments, one would assume that Her Majesty’s inspectorate of constabulary was taking over the role of the Audit Commission and excluding it from the inspection role.
I do not believe that that is what the Government intend. My understanding is that they are relying on section 10 of the Local Government Act 1999 to give the Audit Commission the power to inspect police authorities, and on section 29 of the Police and Justice Act 2006 to enable Her Majesty’s inspectorate of constabulary to act jointly with a public authority—in this instance, the Audit Commission. That forms the structure around which the joint inspections will take place. It would have been better to have expressed that explicitly in the Bill, rather than people having to hunt around three different enactments to find out what the situation is.
My amendment deals with something that is, to the Association of Police Authorities, a specific omission: peer review. I hope that the Minister will accept that I constructed the amendment myself to provide an opportunity to discuss the matter. The amendment might not be perfect, so I will accept any drafting amendments that he wishes to make, if he accepts the principle.
The peer review element is important. The Association of Police Authorities thought that it had secured the agreement of the Home Office that peer review would form part of the inspection process. It was extremely pleased about that because it had pressed for it for a long time. It felt that if there was to be a robust investigation process putting together HMIC and the Audit Commission, while at the same time giving other police authorities that face the same problems a role in assessing the performance of a police authority, that would give the best guarantee of a successful outcome.
The association is very disappointed that the Bill does not reflect what it thought had been agreed with the Home Office. It might still be the Government’s intention that a peer review should take place, but the statutory basis on which it would be constructed is not clear. It would be better if that were made explicit in the clause, which is why I have tabled the amendment.
I hope that the Minister will accept the amendment or, if he accepts the principle of it, come back with a proposal with an alternative wording. If he feels that that is not necessary because the objective can be secured by other means, it would still be helpful if he were to make it clear to the Committee that it is the Government’s view that peer review should form an essential part of the inspection process. If he were to do that, I would not press my amendment to a Division.

Vernon Coaker: I apologise to the Committee, but this important amendment would have an impact on police authorities across the country and I need to read my response into the record. When I have done so, I hope that the hon. Gentleman will feel reassured. Given that my comments will be read by many people, I hope that the Committee will bear with me, notwithstanding the lateness of the hour.
Police authorities play a critical role in securing continuous improvement in the police service, and we need to ensure that they are performing their functions effectively. A systematic process for the assessment of police authority performance would enable judgments and comparisons to be made about performance, help to drive further performance improvement, and make it possible to target support to poorly performing authorities. It is our intention, therefore, to make it possible for inspections to be carried out jointly by Her Majesty’s inspectorate of constabulary and the Audit Commission across the full range of police authority functions.
While the inspectorate of constabulary and the Audit Commission between them will bring to bear wide professional expertise and knowledge of policing and the inspection of police authorities, we agree that police authorities provide valuable experience that should be available as part of any inspection process. We see peer review by authorities forming an integral part of the programme of inspections carried out by the inspectorate of constabulary and the Audit Commission. However, it is right that legislation specifies at this stage only the bodies that will have responsibility for inspecting authorities and the extent of the inspection process.
Giving an element of the inspection process legislative force, as is suggested by the amendment, would confer unnecessary prominence, reduce flexibility and limit the ability to take account of different circumstances in different police authorities. I would argue that that sort of detail is best set out in the joint inspection framework and methodology that will be developed to inform the work. A protocol will be drawn up by all those involved and will provide a clear basis on which to manage a programme of inspection activities. It will set out the respective roles and responsibilities of all the bodies involved and ensure that all appropriate skills and knowledge are available.
The protocol will be developed with the Association of Police Authorities to ensure that its knowledge and understanding of the work of authorities is reflected. The role of peer review will be spelled out. The inspectorate of constabulary and the Audit Commission are ready to explore how best to bring that into the inspection process.
I might further add that the Home Affairs Committee report on police funding welcomed the development of an inspection framework by the inspectorate of constabulary and the Audit Commission, and supported its speedy implementation. I hope that with my reference to the importance of peer review, the hon. Gentleman will feel sufficiently reassured.

David Heath: That was an extremely helpful recital of the Government’s position. It is also possible to take perverse pleasure in the fact that Ministers and shadow Ministers can sometimes aggravate Whips who do not provide sufficient time for proper consideration by increasing the length of our consideration of such matters. That is quite apart from the intrinsic importance of the announcement that the Minister just made, but, in both respects, the Minister’s response has been helpful, so I thank him for it. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 114 ordered to stand part of the Bill.

Clause 115

Designation

Harry Cohen: I beg to move amendment No. 356, in clause 115, page 78, line 10, leave out ‘or 2’.

Edward O'Hara: With this it will be convenient to discuss the following amendments: No. 357, in clause 115, page 78, line 17, leave out subsection (3).
No. 330, in clause 115, page 78, line 17, leave out ‘a member of the family’ and insert ‘the spouse’.
No. 358, in clause 122, page 82, line 12, leave out subsection (3).

Harry Cohen: I have tabled amendments to four of the next five clauses, so I shall try to be succinct. They have mainly been tabled on behalf of Liberty, as the Committee knows. A couple have been tabled on behalf of the Refugee Council. I have also received representations in recent days from the Joint Council for the Welfare of Immigrants, and I might mention a couple of its points.
The amendments particularly concern the definition of a family of a person designated with special immigration status. They are meant to relate to foreign criminals who are liable to deportation, but cannot be deported for all sorts of reasons—perhaps because of their human rights, or because of the risk of going back to a country where they will be tortured or killed. Such people are not necessarily criminals, by the way, but we will come on to that later. There might be a suspicion that they have been involved in something that has led to their designation under that status.
The clause mentions the family of a person, and by that the Government have included a person’s spouse and children. My amendments would delete any reference to children. The UN convention on the rights of the child makes specific provision to ensure that children are not disadvantaged as a consequence of the actions of their parents. Article 2.2 states:
“States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.”
That is clear. Special immigration status should not apply to children just because it has been applied to their parents—or to just one parent. That would be wrong. The child would be left in limbo and under all sorts of restrictions, perhaps severe restrictions. The status would apply to children under 18, but people who are under 18 can work and 16 or 17-year-olds could have a restriction placed on their ability to work. They might not have access to education or to child care. All sorts of other restrictions could be imposed, and that is a serious point. The Government should say why they are breaching the UN convention on the rights of the child through this clause.

David Heath: I rise to support some of the contentions made by the hon. Member for Leyton and Wanstead. Indeed, I am a co-signatory to amendment No. 330. As is not unusual in my part of the world, I was brought up a nonconformist. I believe that the Catholic Church has now abandoned the concept of limbo as a waiting room in which nothing can happen between death and the transfer to paradise. The Government, however, are attempting to introduce their own equivalent of limbo in these clauses with a new, unique status that effectively prevents anyone with this special immigration status from having any capacity to do what might be normal for a person who is resident in this country. It is difficult to see the justification for the proposal. I assume that we will have a stand part debate on this clause, so I shall not cover all my points at this stage.
The hon. Member for Leyton and Wanstead raised an important issue about the position of young people and families. Amendment No. 330, which I support, would take the term
“a member of the family”
out of the clause and insert “the spouse”, thus giving a more direct familial relationship than the wider family concept. We are otherwise in danger of extending the provisions more widely than could possibly be justified by the difficulties caused by a few cases that have been fairly well publicised. The Minister should clarify what may and may not be appropriate or applicable to an individual who is the principal holder of this new status and to any other person who has a familial connection with them. We are getting dangerously close to having a form of punitive action based on a sort of collective responsibility that is alien to the traditions of this country’s justice system.

David Burrowes: I welcome the opportunity that the amendment gives us to debate the problematic issues concerning the family members of designated people. I acknowledge that the amendment is intended to distinguish the circumstances of such family members and to deal with them proportionately and fairly. It is also intended to amend the Government’s approach on dealing with people whom they do not wish to give ordinary leave to remain—perhaps due to a lack of ability to remove them. Let us not avoid the need to deal carefully with family members.
The purpose of the clause has been discussed, and we might debate it in more detail during the stand part debate. That issue is relevant when considering how to deal properly with family members. I understand from the research paper that the measures are intended to cover about 50 people. I am concerned whether they are intended to deal with those 50 people proportionately, or whether they are a response to the Afghan and other cases, which have caused public concern. It is important that the pressure to deal with this problem does not bring in its wake associated problems with family members. I look forward to hearing the Minister’s reply.

Vernon Coaker: In answer to the hon. Member for Enfield, Southgate, we anticipate that about 50 people will be subject to the special immigration status. I shall answer his other point when I remember it.
It might assist the Committee if I clarify why the Bill provides for the designation of family members. Special immigration status is, as the term implies, an immigration measure, and it was—I remember the point now—introduced as a result of the Afghan hijack and the various problems that arose from that.
As a matter of policy, the Border and Immigration Agency does not grant dependants with leave in line—a form of leave that is more favourable than that given to the principal applicant. A person’s claim to apply for leave as the dependant of another person stands or falls with that of their spouse, parent or partner. They cannot expect to emerge from the process with more than the person on whose claim their own claim is based. Consequently, if the principal applicant is given a new special immigration status, we must have the power to designate the family as well as the foreign criminal. I should make it clear that that is the only reason for extending designation beyond a foreign criminal.
I should also make it clear that we will designate family members only if the principal applicant is designated, and that a family member who has been designated will be able to apply for leave in their own right and, if they qualify, be granted it. There is nothing to prevent a family member from applying in their own right before they are designated if it seems likely that the principal applicant will be designated. There are two aims behind the conditions that can be imposed: first, to prevent a foreign criminal from establishing links with this country that might constitute an additional obstacle to his eventual deportation; and, secondly, to maintain contact with a foreign criminal and his immediate family until such time as his removal becomes possible. The purpose of the conditions is not punishment, but merely to allow a situation to be managed.
The Bill creates a support regime to ensure that designated persons, whether a single adult or a family group, have access to some support. Children who are designated may be required to live with their parents, but one would expect that to happen anyway. Depending on their age, they may have to accompany a designated person when the latter attends a reporting centre, but that could apply even when the children are not required to report. That might be regrettable, but it is not a reason for not requiring the parents to report.
The purpose of the provision is to deal with an anomaly that arose following the Afghan hijack case. It is designed to manage the situation, not to punish. Other members of the family, other than the foreign criminal, can apply in their own right, and the various support and processes will be available to them, including if they are children. The UK Borders Act 2007, as I am sure my hon. Friend the Member for Leyton and Wanstead knows, introduces a code of practice to keep children safe from harm.
The issue is difficult, and no one intends to put children or others at a disadvantage. We believe that we have made a proportionate response to an anomaly that arose as a result of a particular circumstance.

Harry Cohen: I appreciate the Minister’s response, but I am not convinced. He says that he does not want to give links to a parent who is a designated foreign criminal by giving rights to a child by way of not designating the child. The solution is simple: do not allow the parents those rights in such circumstances, but do not take that out on the child. We could legislate, or have it as an administrative policy, that that link will not be made. The child should not necessarily be subject to the same special designated status.
As children approach 18 and beyond they will become increasingly independent and will expect their own rights, but they could face designation through no fault of their own for a long time and have their activities, chances and income restricted in their growing independence, thus keeping them in the same sort of poverty as their parents. I am not happy with the provision, and I hope that the Minister will ask his colleagues who deal specifically with immigration to look at that aspect again. I shall take a close look in Hansard at what he said.

Vernon Coaker: I shall of course pass on my hon. Friend’s remarks and bring them to the attention of the Minister who deals with immigration. I shall ensure that that Minister is aware of all my hon. Friend’s comments on this group of amendments, and generally, and of the remarks made by other hon. Members as well.

Harry Cohen: I appreciate that. I had virtually concluded what I had to say. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

David Heath: This is the opportunity to widen the debate on this aspect of the Bill a little. As always, I accept the Minister’s good faith in proposing the clause and I appreciate that it is not his part of the Ministry that is pressing the proposal. Having said that, I find it impossible to reconcile the Secretary of State’s stated objective of simplifying immigration law with the inclusion in the Bill of this provision, which makes the law in that area more complex. It is complex enough already, yet the Bill will introduce an entirely new status.
If the Government intended to deal with the issue, it is hard to find adequate reason why that did not happen in the context of the UK Borders Act 2007, which could have dealt with it from the point of view of an Act concerning immigration. Instead, the provision is tacked on to a criminal justice Bill—although its presence means that this is actually the Criminal Justice and Immigration Bill. The Bill now contains a leftover from previous legislation that has been spatchcocked into the middle in the form of part 11.
There is a perfectly sound argument that the issue was, in fact, already dealt with by section 16 of the UK Borders Act, which provides for restrictions on residence and reporting. A new status is not needed in law to provide the sorts of safeguard that the Government believe are necessary to achieve their objectives.
I am sure that the Minister knows that the provision has caused a great deal of concern among those who have a particular interest in refugee matters. The hon. Member for Leyton and Wanstead has already mentioned the Refugee Council, and he could have mentioned the Immigration Law Practitioners Association, too. He could also have mentioned something that we shall come on to when we debate the next clause: the United Nations High Commissioner for Refugees. I do not like receiving a briefing from the UNHCR that points out deficiencies in a proposal to change British law. It is not appropriate for this Government or Parliament to be addressing proposals that fall foul of the commissioner, yet that is the position in which we find ourselves.
The arguments against the proposal can be summarised quite briefly. There is the argument that the status is unnecessary, and there is the argument that it is disproportionate and will affect members of extended families, as we have discussed. There is also the argument that it is a punitive sanction without an offence for which it is the punishment, in that it provides for people to be put into legal and economic limbo. There is an argument, too, on the support that will be given to the people affected. We thought that, except in exceptional circumstances, we had got rid of the voucher system, given the problems that it caused, but the Government are now bringing it back for this specific class of people. As the level of support is very limited, we are effectively condemning these criminals to progressive poverty without any expectation that their circumstances can change in the near future.
We have specific issues concerning the right of appeal. I know that the Government are always loth to provide any right of appeal in immigration cases, for fear that that will extend the process. However, it is a matter of natural justice that there should be a right of appeal against designation. There are abundant reasons why this House should not accept this proposal as being the best way of dealing with the problem that the Government have identified and for which I think there are other remedies.

David Burrowes: I want to make two comments. The first is in relation to the UK Borders Act 2007. Why is it necessary to define foreign criminals in a different way from the definition within the 2007 Act? This issue moves into the debate on clause 116, but perhaps I could raise it now and not repeat it when we get to that clause. The 2007 Act is relevant when considering this part of the Bill because the issue of the definition of foreign criminals was considered in detail. There was pre-legislative scrutiny in which there was much consideration of the definition. It is important to draw the Minister, either now or when we discuss clause 116, on why there is a different definition for the purposes of automatic deportation within the 2007 Act, which excludes the categories that are within the designation and the definition of “foreign criminal” in the Bill.
The other point on which I ask the Minister for some guidance is on the right of appeal. It may well be that in the concern to deal expeditiously and appropriately with these designated foreign criminals, the Government will store up for themselves problems in relation to appeals. While the Bill does not provide for any normal route of appeal, it would still be open, through the administrative route, for an application to be made by way of judicial review. That process is lengthy and may well lead to those 50 or so cases a year being dealt with in a lengthy manner, while the right of appeal might be able to deal with them in a much more appropriate and expeditious manner. That would also be consistent with the principles of natural justice.

Vernon Coaker: I thank hon. Members for their comments. To spell it out, the purpose of the part on special immigration status, as hon. Members know, is to deny immigration leave and its benefits to foreign criminals. That cannot be achieved through existing legislation. The denial of leave is necessary to demonstrate that, although these people cannot be removed because of our obligations under the European convention on human rights, they remain in the UK, to a certain extent only because we cannot remove them. The provisions will help to ensure that those people do not put down roots in this country by taking up employment and establish themselves here, which would make it difficult to remove them when the original barrier to deportation no longer applies.
Part 11, of which clause 115 is the first clause, creates the new immigration status in response to two rulings by the High Court and the Court of Appeal in 2006 in a case relating to the immigration status to be afforded to a group of men who arrived in the UK in February 2000, having seized control of an aircraft on an internal domestic flight in Afghanistan. The High Court ruled, and the Court of Appeal confirmed, that as these men had won their appeals against the decision to refuse them leave to enter the UK, it was not open to the Government to leave them on temporary admission. The Court of Appeal commented that if the Secretary of State wanted to be able to withhold immigration leave, it was open to him to legislate to that effect. That is what part 11 will do.
We do not believe that it is appropriate that we should be put in a position where there is no option but to grant immigration leave, with all the advantages that flow from it, to individuals whose presence in the UK we consider undesirable and whom we would remove if there were no ECHR barrier to doing so. A person will be given the new status by being designated. Accordingly, the clause provides that certain persons may be designated by the Secretary of State. It allows him to designate a person who is a foreign criminal—a term defined in clause 116—who is liable to deportation but cannot be removed from the United Kingdom because of section 6 of the Human Rights Act.
The family members—that is to say the spouse or civil partner and any children under 18—of a foreign criminal liable to deportation may also be designated. As I have said, that is necessary to cover cases in which a person’s dependents have applied for immigration leave. As a matter of policy, the Border and Immigration Agency does not grant dependents who apply for leave “in line”—a form of leave that is more favourable than that given to the principal applicant. However, they may claim in their own right.
A person with the right of abode in the UK may not be designated, nor may designation occur if the Secretary of State thinks it would breach the UK’s obligations under the refugee convention or the person’s right under Community treaties. One effect of designation provided for by clause 117 is that individuals concerned do not have leave to enter or remain in the United Kingdom. In the normal course of events, foreign criminals who are guilty of serious crimes will face deportation, and there will be no question of granting any leave.
We believe that it is wrong that foreign criminals who cannot be deported should receive leave for which they would not otherwise qualify solely and simply because they cannot be removed. As I have said, we will not designate if it would breach the UK’s obligations under the refugee convention. In practice, that means that we will not designate a recognised refugee. Of course, if we discover that a person who has been recognised as a refugee falls within the scope of the exclusion clause in article 1F of the refugee convention, we may decide to revoke his refugee status.
In summary, the provision will enable us to place someone who is liable to be deported, but cannot be removed from the UK because of rights under the ECHR, on a new immigration status. It will not apply to British citizens, recognised refugees or persons in the UK exercising treaty rights. Subsection (1) states that the Secretary of State
“may designate a person who satisfies Condition 1 or 2”.
It does not state that the Secretary of State will designate that person. There is discretion available to the Secretary of State all the way through the clauses, and the word “may” is often used deliberately, rather than “will”.

Clause 115 ordered to stand part of the Bill.

Clause 116

“Foreign criminal”

Harry Cohen: I beg to move amendment No. 332, in clause 116, page 78, line 28, leave out ‘any’ and insert ‘either’.

Edward O'Hara: With this it will be convenient to discuss amendment No. 331, in clause 116, page 78, line 36, leave out subsection (4).

Harry Cohen: The amendments relate to the definition of “foreign criminal”, particularly as it applies to article 1F of the refugee convention, which is basically the exclusion clause. It specifically excludes from refugee protection
“any person with respect to whom there are serious reasons for considering that”
they have committed a crime and so on. There needs only be a suspicion that there are serious reasons for considering that—it does not say that the person must have committed a crime. As I understand it, there will be no hearing or a chance for people to defend themselves against the charge. That is why Liberty makes the point that the special immigration status with which a person could be designated can be applied to people with no conviction at all or convicted of a relatively minor offence. That represents inappropriate and excessive conditions upon them.
The Refugee Council has gone through the history of the matter. The Minister mentioned the Stansted Afghans, whose case was obvious in some respects—they would have fallen under article 1F. The United Nations High Commissioner for Refugees has emphasised that the exclusion clauses should be interpreted narrowly, in particular Article 1F (c) which is
“only triggered in extreme circumstances by activities which attack the very basis of the international community’s coexistence. Such activity must have an international dimension. Crimes capable of affecting international peace, security and peaceable relations between states as well as serious and sustained violation of human rights would fall under that category.”
The Government have not interpreted it in that narrow way. They have taken it as broadly as possible and it could even extend to unacceptable behaviour as far as I understand it and as the Refugee Council suggests. There is an important point that it could include acts such as encouraging criminal damage in order to coerce the state. It may readily include many political refugees who have opposed repressive regimes in their home countries.
The Joint Committee for Human Rights fears that
“it will be used to deny asylum to individuals who may have been engaged abroad in resistance to an oppressive regime, but are caught by the UK’s very broad definition of terrorism.”
That signals some problems. It is very easy to talk about foreign criminals when we are dealing with convicted foreign criminals, but if some of them have not been proved to be criminals, there are problems. Again, it is incumbent on the Government to give a clearer explanation of their position in this regard.

David Heath: I want to speak about the UNHCR concerns about article 1F. I want to read into the record its concern about the way that the British Government have interpreted article 1F in previous UK legislation. It draws attention to section 54 of the Immigration, Asylum and Nationality Act 2006, where article 1F(c), which deals with persons
“guilty of acts contrary to the purposes and principles of the United Nations”
is then extended and expanded to encompass
“acts of committing, preparing or instigating terrorism (whether or not the acts amount to an actual or inchoate offence)”
as well as acts of encouraging or inducing others to do the same.
The UNHCR says that there is a very good reason why article 1F is a narrowly drawn provision. While it accepts that any participating state under the convention
“has the prerogative to define terrorist acts more broadly to encompass acts that may not have an international dimension, not all acts so defined as ‘terrorist’ would fall under Article 1F (c).”
So there are two subsets that are not coterminous in terms of interpretation. The UNHCR states:
“It has been a long-standing practice of many states party to the 1951 convention to maintain a restrictive interpretation and application of article 1F (c), especially given its vague nature and potentially grave consequences. It is UNHCR’s position that article 1F(c) must be read narrowly. Furthermore, UNHCR is concerned that exclusion from the protection of the 1951 Refugee Convention should not be equated with conviction for the excludable acts, due to the contrast between the lower standard of proof in deciding Article 1F cases (clear and credible evidence is required, no conviction is necessary) vis-Ã -vis the ‘beyond reasonable doubt’ standard for criminal convictions in the UK.”
As a result of those reservations the UNHCR says that it
“questions whether it is appropriate to designate persons excluded under Article 1F as foreign ‘criminals’.”
As I say, this is a serious criticism from an impeccable source. If we are sensible in our interpretation of the law and in our commitment to the 1951 refugee convention, we must have regard to what the body charged with interpreting that convention has to say about the proposals. The Minister needs to respond directly to the criticisms from the UNHCR, and to accept that it has reservations about the way in which we have interpreted the convention’s requirements on our domestic legislation, and that it has raised a serious issue of compliance. Our legislation does not require a certificate of compliance with the refugee convention in the way that Ministers are required to certify that provisions comply with the convention on human rights. However, if we are party to such agreements, we should have regard to its provisions and seek to ensure that our domestic law is compliant with it. The UNHCR is saying that it will not be, if we accept the provisions before us.

David Burrowes: I rise to draw upon the remarks of the hon. Member for Somerton and Frome. He mentioned the concerns of the UNHCR, but subsection (4) stipulates that a person cannot be designated if it would breach his rights under the refugee convention. It has been suggested that anyone considered for designation could be excluded from protection under the convention. I do not want to get the Minister out of jail, but it seems to be explicit in the Bill that such a person’s rights under the refugee convention cannot be contravened. Having said that, I would be interested to hear his response.

Vernon Coaker: I thank my hon. Friend the Member for Leyton and Wanstead for tabling his amendments and for raising these important matters. He has given me the opportunity to comment on them. They would strike out the exclusion from refugee status, granted by article 1F of the refugee convention, as one of the grounds for designation for the purposes of special immigration status. I know that he will be aware of the wording, but it is worth bearing mind that article 1F says:
“The provisions of this Convention shall not apply to any person with respect to whom there are serious grounds for considering that:
(a) he has committed a crime against peace, a war crime or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.”
By virtue of section 54 of the Immigration, Asylum and Nationality Act 2006,
“acts contrary to the purposes and principles of the United Nations”
include acts of committing, preparing or instigating terrorism and acts of encouraging or inducing others to commit, prepare or instigate such acts.
If the amendments were accepted, designation would be restricted to cases where a person had been convicted and sentenced to imprisonment for two years or more for any offence, either in the UK or overseas, or to imprisonment for an offence specified in the order made under section 72 of the Nationality, Immigration and Asylum Act 2002, or for an analogous offence overseas.
My hon. Friend says that designation should be limited to cases where we are certain that a criminal offence has been committed, as evidenced by the fact of the conviction. However, we are not talking about cases in which there is a vague suspicion of wrongdoing on the part of an individual, but about cases where there are serious grounds for considering that an individual is guilty of actions so serious that even if he has a well-founded fear of persecution in his country of nationality, he is to be denied the protection normally afforded to a refugee by the international community. The requirement to have serious grounds before making any consideration means that there will need to be clear and credible evidence on which to base a decision to exclude. Often, people will not have been prosecuted, still less convicted. Indeed, sometimes, the reason why such people cannot be prosecuted is that they are in the United Kingdom. We are unable to bring them to trial here, and we are unable to remove them for human rights reasons.
Sometimes, people cannot be tried here for procedural reasons: in other words, the events happened abroad and the evidence was gathered there, and witnesses would have to be brought here. In other instances, our courts do not have jurisdiction, even for serious offences. For example, our courts have no jurisdiction to try a foreign national for a murder committed overseas. Ideally, we would prefer to deport rather than designate such individuals, but if our international human rights obligations mean that we cannot deport a person, we want to be in a position to designate, so we are not forced into a position whereby we are forced to grant leave for the person to remain here.
I need hardly remind the Committee that this new status is being created in response to the Court of Appeal ruling on the Afghan hijackers. If the conduct in question is sufficiently serious to debar a person from the protection of the international community as expressed in the refugee convention, we believe that it is also sufficiently serious to disentitle them to enter or remain in the UK. With those remarks, I hope that my hon. Friend feels able to withdraw the amendment.

Harry Cohen: I appreciate the Minister’s reply, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

David Burrowes: I wish to address the issue of how far the clause will go with regard to another other problem area—namely, European economic area nationals and their families, and the question of whether they can be designated and the effects of such action on them.

Vernon Coaker: The answer to the question is no, they cannot.

David Burrowes: So they cannot be designated?

Vernon Coaker: I am sorry—I did not mean to be rude. I apologise to the hon. Gentleman, but I was simply answering his question.

Edward O'Hara: Mr. Burrowes, I would like you to come to an orderly conclusion.

David Burrowes: Thank you, Mr. O’Hara. The Minister has helped to clarify a point made in the Library research paper. In its commentary on the clause, the Library paper indicated that the measure would be rarely used, and I was going to ask how rare is rare, and about the numbers who would be subject to designation. The Minister has made it clear, however, that the public security threshold is too high to designate the nationals to whom I referred.

Vernon Coaker: If the hon. Gentleman looks at clause 115(5), he will see that it states:
“The Secretary of State may not designate”
people when that would breech
“the United Kingdom’s obligations under the Refugee Convention or...the person’s rights under the Community treaties.”

Question put and agreed to.

Clause 116 ordered to stand part of the Bill.

Clause 117 ordered to stand part of the Bill.

Clause 118

Conditions

Harry Cohen: I beg to move amendment No. 333, in clause 118, page 79, line 28, at end insert—
‘(2A) Any condition imposed under subsection (2) must not—
(a) be excessively restrictive in all the circumstances;
(b) have a punitive impact upon the designated person;
(c) be intended to prevent the commission of further offences.’.

Edward O'Hara: With this it will be convenient to discuss amendment No. 341, in clause 118, page 79, line 28, at end insert—
‘(2A) Any condition imposed under subsection (2) must not—
(a) be excessively restrictive in all the circumstances; or
(b) have a punitive impact upon the designated person.’.

Harry Cohen: It is known that I tabled the amendment on behalf of Liberty. Basically, it would mean that any condition that imposes someone’s designation would not be “excessively restrictive” or “have a punitive impact”, bearing it in mind that the measures will bring people to trial or judicial hearing. I shall not go further than that other than to take the opportunity to ask for an assurance, which has been asked for by the JCWI. If the clause is to remain part of the Bill, JCWI wishes to seek an assurance that the measure allowing designation with special immigration status will not in any circumstances be employed against refugees. Using the measure against refugees would extend it beyond the focus on foreign criminals.

Vernon Coaker: Refugees will not be designated. They are one of the groups of people that cannot be designated, so I can reassure my hon. Friend on that point.

Harry Cohen: I am grateful to my hon. Friend for answering that point, which I am sure will go back to the JCWI.

David Heath: I tabled amendment No. 341; the more assiduous and less myopic Members will have noticed that it bears a marked resemblance to amendment No. 333, with the exception that subsection (c) is missing. I thought that it was worth tabling it to deal with the issues of appropriateness and proportionality without introducing the further complication of whether it is appropriate to provide a pre-emptive condition to prevent further reoffending on the part of a person who has already been defined as an offender under the terms of the Bill.
The amendment will allow us to explore with the Minister whether the concept of proportionality and appropriateness might find favour. Amendment No. 333, tabled by the hon. Member for Leyton and Wanstead, is more encompassing—I agree with it, incidentally—but might fall foul on the basis that the Minister is determined that it would be appropriate to have a condition that attempts to prevent the commission of further offences by the person when in this country. Mine is a sort of Cohen-lite amendment, in an attempt to curry favour with the Minister.

Vernon Coaker: I cannot support the amendments. Normally I say that I will consider them, but it is getting late and we are all getting a bit tetchy. On the face of it they appear reasonable, but they are unnecessary, to some extent undesirable and overall they appear to be based on a misunderstanding of the new status.
Paragraph (a) is unnecessary. Without the amendment, the conditions imposed must be reasonable and cannot be excessively restrictive. That is clear. The hon. Member for Somerton and Frome may say that that depends on the circumstances of the case, but those circumstances will be taken into account when imposing the conditions. I do not consider that the limitation that paragraph (a) imposes would necessarily assist in that respect.

David Heath: Can the Minister show where it is clear that the conditions must be reasonable and not excessively restrictive, and what possibility is there for challenging the view that a condition, when imposed, is excessively restrictive?

Vernon Coaker: The conditions that may be imposed match those which apply to individuals with temporary admissions under the Immigration Act 1971, which have been in operation successfully for over a third of a century. We do not, therefore, believe that it is necessary to alter wording that is already established in immigration law. Also, the Human Rights Act 1998 makes it unlawful for public authorities to act in a way that is incompatible with the convention.
Paragraph (b) of amendment No. 341 suggests a possible confusion about the purposes of designation and conditions. The new status is not an additional punishment, and the purpose of the conditions that might be imposed is not to punish. The condition relating to employment is designed to prevent the designated person establishing firm roots within the UK, as I have already said. The conditions relating to residence and reporting are designed to enable the BIA to maintain contact until such time as the ECHR barrier to removal has passed, so that the removal can be effected. If a condition is considered necessary to achieve those aims, we should not prevent it from being imposed.
Finally, I am happy to make it clear that the purpose of any conditions that may be imposed is not to prevent the commission of further offences. Again, discussion on that has revealed a misunderstanding of the purpose of creating the new status. As it is has been stated, the aim of imposing conditions is not crime prevention or reduction, and that holds good whether or not the clause is amended to state that explicitly. The purpose of conditions is to manage the situation.
I ask the hon. Member for Leyton and Wanstead to withdraw the amendment.

Harry Cohen: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 118 ordered to stand part of the Bill.

Clause 119

Support

Harry Cohen: I beg to move amendment No. 361, in clause 119, page 80, line 22, after ‘person’s’, insert ‘long-term’.

Edward O'Hara: With this it will be convenient to discuss the following amendments:
No. 362, in clause 119, page 80, line 23, after ‘essential’, insert ‘long-term’.
No. 359, in clause 119, page 80, line 27, leave out ‘may not’ and insert ‘must’.
No. 360, in clause 119, page 80, line 28, leave out from ‘cash’ to end of line 29.
No. 363, in clause 122, page 82, line 21, leave out subsection (7).

Harry Cohen: The amendments are about the cash or vouchers issue. It may come as a surprise to some of my colleagues, but at the last count I was not in the top 20 when it came to rebelling in votes in the House. However, I did rebel over vouchers, which threw a lot of asylum seekers into destitution. I am concerned about that and I have a track record in that regard.
Some of the amendments relate to essential living needs and accommodation. If people are very likely to be specially designated for a long time, they should have long-term assistance or their circumstances should be dealt with on a long-term basis. Also, they should have cash rather than vouchers.
I have had a number of representations, including from the Refugee Council, which says that there is no allowance for such things as clothing and shoe repairs and that there will be progressive poverty under the proposals. It also said:
“The use of vouchers as a form of support for asylum seekers was ended following considerable concerns about its stigmatising and impoverishing impact. Currently it is only used for refused asylum seekers in receipt of Section 4 (hard cases) support. Now it is proposed to reintroduce the use of vouchers for a whole class of people who have no prospect of this form of support coming to an end.”
The JCWI quotes from the refugee convention, which we are signed up to, and mentions
“The duty to assimilate refugees”
and that
“The Contracting states shall so far as is possible facilitate the assimilation and naturalisation of refugees”.
It notes that the convention says:
“The contracting states shall accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their nationals”.
I think that vouchers fall foul of that. However, worst of all, they are impoverishing. Vouchers carry about two-thirds of the value of income support. If people use a voucher, they will get less value than if they were spending cash. I ask the Government to think again on that aspect.

Vernon Coaker: I know that my hon. Friend has real concerns, not just about supporting people who may be designated under this provision, but about the support that is made available to people in all sorts of other circumstances. He will see, under clause 119(3), the support that can be made available and under subsection (4) he will see something in respect of vouchers, about which he is concerned. However, to try to appease some of his concerns, he will also know that we have inserted something into the Bill, because of his concerns and those of others. I refer him to clause 120(6), which specifically states:
“The Secretary of State may by order repeal, modify or disapply (to any extent) section 119(4).”
Although he is concerned about certain elements in the Bill, there is explicitly a provision for him to continue to argue his case for the need for those to be changed through the order-making power.

Harry Cohen: I appreciate that. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 119 ordered to stand part of the Bill.

Clause 120

Support: supplemental

Question proposed, That the clause stand part of the Bill.

David Burrowes: I should like to refer to the point made in response to the amendment tabled by the hon. Member for Leyton and Wanstead. Clause 120(6) is a Henry VIII provision, allowing primary legislation to be amended by statutory instrument. Will the Minister briefly respond to the concerns in this regard? Obviously, as a matter of principle, use of this type of provision should exceptional, rather than the norm. Would it not have been more appropriate to consider in more depth whether there was a need to have flexibility implicit in the Bill, rather than seeking to use an order-making power to build in the flexibility that the Minister mentioned with regard to alleviating his concerns?

Vernon Coaker: We have tried to meet the concerns that some people have that the Bill is unnecessarily restrictive and does not do what it should on support. We have provided for what we believe to be the right level of support at present, but we thought it appropriate and proportionate to include the opportunity to change that if necessary. That is why the provision is in the Bill.

Question put and agreed to.

Clause 120 ordered to stand part of the Bill.

Clause 121 ordered to stand part of the Bill.

Clause 122

Interpretation: general

Harry Cohen: I beg to move amendment No. 355, in clause 122, page 82, line 9, at end insert ‘and [Appeals against designation]’.

Edward O'Hara: With this it will be convenient to discuss new clause 59—Appeals against designation—
‘(1) A designated person may appeal against his designation.
(2) The Secretary of State must make regulations about appeals under this section.
(3) Regulations under this section are to be made by statutory instrument and are subject to amendment in pursuance of a resolution of either House of Parliament.’.

Harry Cohen: This is about appeals—there are none. However, I think that, out of natural justice, there should be an appeal if someone feels aggrieved because they have been designated in this way. Also, the JCWI again makes the point that there appears to be no route out of designated status.

David Heath: I rise to support the hon. Gentleman. It seems to me, reading this element of part 11, that not only is there no appeal against designation but there is no potential challenge to any part of the process, which is all dealt with by Executive action, including any conditions that may be applied as part of that process. At no stage, other than by recourse to the Human Rights Act 1998 or, presumably, judicial review of a decision taken by the Secretary of State or an immigration officer, is there any capacity for any challenge to be made to anything that he has done to a person who is designated as having special immigration status. Of course, there is the very real assumption that in the absence of any form of legal aid provision, there is no capacity—unless the person has particularly deep pockets from elsewhere, which is unlikely in this context—to mount a judicial review application or an application under the Human Rights Act in any case. The hon. Gentleman’s point about the lack of an appeal is very serious, but I would go wider and say that it is not simply the issue of designation that is relevant, but the other factors encompassed in this part of the Bill.

David Burrowes: I wish to follow on from those remarks, rather than repeat them. They are valuable in relation to the lack of appeal. I ask the Minister to consider whether by not having an appeal mechanism, we may have built a delay into the process when the only option left to an applicant is to go to the European Court of Human Rights or seek judicial review. Would it not be appropriate to have an appeal mechanism at least to allow any challenge to proceed expeditiously and appropriately?

Vernon Coaker: I am sorry to disappoint hon. Members, but the Government’s view is that someone who fulfils those criteria should expect to be deported. If that is not possible for ECHR reasons, we should not be obliged, as we currently are, to grant them leave under the Immigration Acts. In many cases, judicial review is open to them, and those people would have legal aid available to them. I am sorry to disappoint hon. Members, but we feel that it is appropriate in the circumstances.

Harry Cohen: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 122 ordered to stand part of the Bill.

Clause 123

Orders and Regulations

Maria Eagle: I beg to move amendment No. 366, in clause 123, page 83, line 2, at end insert—
‘( ) an order under section (Northern Ireland Commissioner for Prison Complaints: eligible complaints: general)(4),
( ) an order under section (Northern Ireland Commissioner for Prison Complaints: power to modify certain provisions)(1), (3) or (5),
( ) an order under section (Northern Ireland Commissioner for Prison Complaints: power to confer new functions),’.

Edward O'Hara: With this it will be convenient to discuss the following: Government amendments Nos. 367 to 369.
Government new clause 61—Appointment etc. of Northern Ireland Commissioner for Prison Complaints.
Government new clause 62—Northern Ireland Commissioner for Prison Complaints: eligible complaints: general.
Government new clause 63—Northern Ireland Commissioner for Prison Complaints: eligible complaints: specific requirements applicable to all complaints.
Government new clause 64—Northern Ireland Commissioner for Prison Complaints: treatment of complaints.
Government new clause 65—Northern Ireland Commissioner for Prison Complaints: report on the outcome of an investigation.
Government new clause 66—Northern Ireland Commissioner for Prison Complaints: recommendations by Commissioner.
Government new clause 67—Northern Ireland Commissioner for Prison Complaints: investigation of deaths.
Government new clause 68—Northern Ireland Commissioner for Prison Complaints: reports on the outcome of a death investigation.
Government new clause 69—Northern Ireland Commissioner for Prison Complaints: investigations requested by the Secretary of State.
Government new clause 70—Northern Ireland Commissioner for Prison Complaints: reports on the outcome of an investigation under section (Northern Ireland Commissioner for Prison Complaints: investigations requested by the Secretary of State).
Government new clause 71—Northern Ireland Commissioner for Prison Complaints: powers of Commissioner to obtain information etc..
Government new clause 72—Northern Ireland Commissioner for Prison Complaints: exceptions etc. to Commissioner’s powers under section (Powers of Commissioner to obtain information).
Government new clause 73—Northern Ireland Commissioner for Prison Complaints: obstruction and contempt.
Government new clause 74—Northern Ireland Commissioner for Prison Complaints: legal and other representation.
Government new clause 75—Northern Ireland Commissioner for Prison Complaints: disclosure of information etc..
Government new clause 76—Northern Ireland Commissioner for Prison Complaints: disclosure prejudicial to national security or contrary to public interest.
Government new clause 77—Northern Ireland Commissioner for Prison Complaints: offence of wrongful disclosure.
Government new clause 78—Northern Ireland Commissioner for Prison Complaints: notification of matters of potential concern to the police or other authorities.
Government new clause 79—Northern Ireland Commissioner for Prison Complaints: power to pay expenses.
Government new clause 80—Transitional provision: the Prisoner Ombudsman for Northern Ireland.
Government new clause 81—Northern Ireland Commissioner for Prison Complaints: interpretation.
Government new clause 82—Northern Ireland Commissioner for Prison Complaints: power to modify certain provisions.
Government new clause 83—Northern Ireland Commissioner for Prison Complaints: power to confer new functions.
Government new schedule 6—The Northern Ireland Commissioner for Prison Complaints.
Government new schedule 7—The Northern Ireland Commissioner for Prison Complaints: complaints’ remit.
Government new schedule 8—The Northern Ireland Commissioner for Prison Complaints: deaths remit.
Government new schedule 9—The Northern Ireland Commissioner for Prison Complaints: controlling authorities.

Maria Eagle: It is great to be back on my feet again, Mr. O’Hara, and I am going to be succinct. The purpose of these measures is to make a similar provision for Northern Ireland to the measures in part 4. Hon. Members will recall that part 4 of the Bill puts prisons and probations ombudsman on a statutory footing. The effect of the measures will be to place the office of the prisoner ombudsman for Northern Ireland on a statutory footing on very similar terms to those that we have discussed. The office holder will be known as the Northern Ireland commissioner for prisoner complaints, and his main function will be to deal with eligible complaints from prisoners, investigate deaths in custody and carry out other investigations at the request of the Secretary of State. The amendments make broadly similar provisions to those discussed, although there are some minor differences which I would be happy to deal with in detail if hon. Members are interested.

Amendment agreed to.

Clause 123, as amended, ordered to stand part of the Bill.
Further consideration adjourned.—[Mr. Khan.]

Adjourned accordingly at two minutes to Ten o’clock till Thursday 29 November at Nine o’clock.